Guide to the law and legal literature of France

"a^liy^

LIBRARY OF CONGRESS

GUIDE

TO THE

LAW AND LEGAL LITERATURE

OF

FRANCE

PREPARED UNDER THE DIRECTION.t)? ,

* • ••

EDWIN M. BORCHARD *• •* ; •

Professor of Law, Yale University
Formerly Law Librarian (1911-1916)

BY

GEORGE WILFRED ^TUMBERG

Professor of Law, University of Texas
Sterling Fellow, Yale University (1927-1928)

UNITED STATES

GOVERNMENT PRINTING OFFICE

WASHINGTON : 1931

For sale by the Superintendent of Documents, Washington, D. C. Price $1.25 (cloth)

L. C. card, 30-26002

DEPOSITED 3Y THE
UNiTLO STATES OF AMERICA

PEEPACE

The Chmde to the lam cmd legal literature of France is
the fifth in the series of guides to foreign law published by
the Library of Congress. It was preceded by the Bibliog-
raphy of irdemationM lam ami contvnental law (1913), the
Gmde to the lam and legal literature of Germany (1912),
the Guide to the lam and legal literature of Spain (1915),
and the Guide to the lam and legal literature of Argentina^
Brazil, amd Chile (1917).

There are in the main three groups of investigators whose
need for a knowledge of foreign law the Library of Con-
gress has sought to meet : First, the lawyer, the judge, and
the citizen, who require practical information of the legal
institutions of foreign countries in the solution of prac-
tical problems affecting the individual; second, the legisla-
tor and the student of comparative government, who desire
familiarity with the methods by which foreign governments
have solved the economic and social problems which face
an industrial age; and third, the student of jurisprudence,
who is interested in legal method, doctrine, and philosophy
for purposes of scientific investigation.

For all these purposes French law and legal institutions
afford a fruitful source of information. The important
commercial relations of foreign countries with France and
the great number of foreigners who live in and visit France
have created an ever-widening practical interest in French
law. In the solution of social questions, notably in the legal
control of the relations between the group and the in-
dividual, French administrative law has created legal in-
stitutions of the greatest importance to all investigators.
For example, in the field of governmental responsibility for
the torts of state officers, French science and practice stand
preeminent among the nations. Finally, as a state with
centuries of cultural background, France has been the cen-
ter of an intellectual life which is as noteworthy in the

IV PREFACE

field of jurisprudence as it is in many other departments
of the humanities. As a leader in the modern movement
for codification, France has inspired many of the codes of
other Latin and of Latin- American countries; and, though
the French codes are no longer the best, French courts have
demonstrated that codification does not necessarily imply
rigidity and inflexibility. The jurists of France, by their
productive scholarship, will long afford materials for the
foreign student of legal method and philosophy. Included
among these jurists are names immortal in the history of
law.

The general plan of the guides to foreign law has been
to combine with an introduction to the legal system as a
whole, emphasizing its distinctive contributions to legal
thought and development, certain practical information con-
cerning positive law and legal institutions accompanied by
a critical comment upon the literature in which those insti-
tutions are described and discussed.

For the preparation of the present guide, the Yale Law
School granted to Prof. G. W. Stumberg, of the University
of Texas, who in 1924 obtained his doctorate in law from the
Yale Law School, a Sterling fellowship to enable him to
spend a year in New Haven, Washington, and Paris in the
pursuit of the studies necessary to prepai'e the guide. The
assistance of eminent scholars of France was invoked in the
comparative estimates placed upon the value of different
works in a given field. Professor Stumberg has, it is be-
lieved, accomplished his task with marked ability and dis-
crimination, and the volume is offered to the public in the
hope that it may serve to acquaint the investigator with the
outlines of French law and the resources of French legal
scholarship.

Edwin M. Borchard.

Herbert Putnam,

Librarian of Congress^

Washington, D. C, Maroh i, 19S0.

CONTENTS

Page

Preface iii

Introduction 1

Bibliography 7

Law libraries 12

Law publishers 13

Legislation^ 14

Treaties 18

Court reports : 18

Encyclopedias 23

Legal education 26

Philosophy of law 32

Legal history 51

Civil code 71

Commercial law 99

Literary and industrial property 131

Civil procedure 137

Labor and social legislation 153

Workmen's compensation 162

Social insurance 165

Criminal law 167

Criminal procedure 180

Extradition 188

Private international law 189

Public law 204

Constitutional law 206

Administrative law 210

Responsibility of the State for torts 216

Sovereignty — ^The Personality of the State 221

Eminent domain ' 223

Railroads 225

Public education 226

Church and State 227

Individual rights — Freedom of speech 229

Colonial law 230

Alsace and Lorraine 231

Public finance 231

V

GUIDE TO THE LAW AND LEGAL
LITERATURE OF FRANCE

INTRODUCTION

The legal profession in the United States, along with that
in England, has been but little inclined to look beyond the
common law for aid in the solution of legal problems. With
a few notable exceptions such as social legislation, where
our English brethren have been more willing to accept mod-
ern movements, particularly those of German origin, there
has been since the early part of the last century no marked
evidence of any tendency in this country or England to draw
from the vast reservoir of continental legal thought and
learning, whether in the field of general jurisprudence, legis-
lation, procedure, or judicial decision. By way of contrast
American judges in the earlier period of our legal develop-
ment freely made use of the then current continental litera-
ture. Dean Pound, in an article in the Illinois Law Keview,
TJie influence of French lam in America (v. 3, p. 354), tells
us that one who reads the older American reports, particu-
larly those of the state of New York, can not fail to notice
the unusual number of references which they contain to the
writers and authorities of the civil law. This early civil
law influence, chiefly that of France, was due to a number of
causes. Among others could be named hostility toward
England and the popular favor that the French revolution-
ary movement received in this country. Probably a better
reason is that judges and jurists dealing with a system of
law undergoing a process of creation and formation natur-
ally turned to the well-ordered outstanding treatises of the
time. Inasmuch as legal thinking in Germany did not reach
its high development until a much later period and Dutch
legal literature had already passed its highest point, it was
only natural that French works, such as those of Pothier and
Domat, should be the ones to which judges and writers, such
as Story and Kent, should turn.

2 GUIDE TO THE LAW OF FRANCE

Evidence of French influence on American law in the
early stage of its evolution is also to be found in the Living-
stone Codes in Louisiana where the Civil code remains to this
day the only example of wholesale incorporation of a non-
English system of law into the legal system of an American
commonwealth. Perhaps one might attribute to the codifi-
cation in France in the early nineteenth century some in-
fluence on the American movement for codification resulting
in the draft codes of David Dudley Field.

American law has long since passed through the formative
stage. The codification movement has largely spent its force,
leaving in its train codes of pleading and in a few common-
law states civil and penal codes. But law is a progressive
social science which, if it is to develop properly, should take
into consideration the best available thought. Nor is it
wholly a national product. Its proper development makes
it desirable to have an acquaintance with foreign legal sys-
tems. As early as 1872, Sheldon Amos in his Science of
jitrispmdence said that "the study of systems of law pre-
vailing in a variety of countries is, indeed, the most fruit-
ful of all experiences to the intelligent jurist" (p. 501).
He also said that the prospects of the science of juris-
prudence will depend largely upon familiarity with the
vast and invaluable juridical literature of Germany and
France.

Some of the literature of these countries, as well as of
others, has been made available in English through the dis-
interested efforts of various associations. Notable examples
are the Modern criminal science series^ Continental legal

^The Modem criminal science series. Published under the aus-
pices of the American institute of criminal law and criminology.
Boston, Little, Brown, and company, 1911-17. 9 v. The series
comprises :

1. Modern theories of criminality. By C. Bernaldo de Quir6s.
Tr. from the 2d Spanish ed. by Alfonso de Salvlo. 1911. 249 p.

2. Criminal psychology. By Hans Gross. Tr. from the 4th
German ed. by Horace M. Kallen. 1911. 514 p.

3. Crime, its causes and remedies. By Cesare Lombroso. Tr.
from the French and German editions by Henry P. Horton. 1911.
471 p.

4. The individualization of punishment. By Raymond Saleilles.
Tr. from the 2d French ed. by Rachel Szold Jastrow. 1913. 322 p.

INTRODUCTION 3

history series^^ and Modern legal phUosophy series.^ The
first guide in the present series was that to the law and

5. Penal philosophy. By Gabriel Tarde. Tr. from the 4th French
ed. by Rapelje HoweU. 1912. 581 p.

6. Crime and its repression. By Gustav Aschaffenburg. Tr. from
the 2d German ed. by Adalbert Albrecht. 1913. 331 p.

7. Criminology. By Raffaele Garofalo. Tr. from the 1st Italian
and the 5th French editions by Robert W. Millar. 1914. 478 p.

8. Criminality and economic conditions. By W. A. Bonger. Tr.
from the French by Henry P. Horton. 1916. 706 p.

9. Criminal sociology. By Enrico Ferri. Tr. from the 4th Ital-
ian and the 2d French editions by Joseph I. Kelly and John Lisle.
Edited by William W. Smithers. 1917. 577 p.

^ The Continental legal history series, published under the auspices
of the Association of American law schools. Boston, Little, Brown,
and company, 1912-27. 10 v. The series comprises :

I. A general survey of events, sources, persons and movements
in continental legal history. By various European authors. 1912.
754 p.

II. Great jurists of the world, edited by Sir John Macdonell and
Edward Manson. 1914. 607 p.

III. A history of French private law. By Jean Brissaud. Tr.
from the 2d French ed. by Rapelje Howell. 1912. 922 p.

IV. A history of Germanic private law. By Rudolf Huebner.
Tr. by Francis S. Philbrick. 1918. 785 p.

V. A history of continental criminal procedure, with special
reference to France. By Adh^mar Esmein. Tr. by John Simpscm,
1913. 640 p.

VI. A history of continental criminal law. By Carl Ludwig
von Bar and others. Tr. by Thomas S. Bell and others. 1916.
561 p.

VII. A history of continental civil procedure. By Arthur Engel-
mann and others. Tr. and edited by Robert W. Millar. 1927. 948 p.

VIII. A history of Italian law. By Carlo Calisse. Tr. by Layton
B. Register. 1928. 827 p.

IX. A history of French public law. By Jean Brissaud. Tr.
by James W. Garner. 1915. 581 p.

X. The progress of continental law in the nineteenth century.
By A. Alvarez, L. Duguit, J. Charmont, and others. Tr. by L. B.
Register and E. Bruncken. 1918. 558 p.

* Modern legal philosophy series. Edited by a Committee of the
Association of American Law Schools. Boston, The Boston book
company; New York, MacmUlan, 1911-25. 13 v. (Vol. 6 not yet
issued.) The series to date comprises:

Introduction to the science of law ; systematic survey of the law

and principles of legal study. By Karl Gareis. Tr. from the 3d. rev.

ed. of the German by Albert Kocourek. 1911. 375 p.

4: GUIDE TO THE LAW OF FRANCE

legal literature of Germany, published by Professor Bor-
chard in 1912. Later guides were devoted to the law and
legal literature of Spain and of Argentina, Brazil, and Chile.
There are a number of reasons why American lawyers
and legislators should be particularly interested in French
law and its literature. One would naturally expect a peo-
ple who, like the French, have long occupied a foremost
place in the world's culture, to supply much that is well
worth while in every department of life. Further, to
quote from Arthur W. Spencer's editorial preface to Mod-
em French legal philosophy (p. xxix) " there is a marked
propinquity of the institutions of the two countries," and
examination of the treatment of the problems of law and
state by French writers affords "the opportunity to be-
come better acquainted with views we are likely to find
acceptable."

The world's legal philosophies. By Fritz Berolzheimer. Tr.
from the German by Rachel Szold Jastrow. 1912. 490 p.

Comparative legal philosophy applied to legal institutions. By
Luigi Miraglia. Tr. from the Italian by John Lisle. 1912. 793 p.

General theory of law. By N. M. Korkunov. Tr. from Russian
and French by W. G. Hastings. 1909. 524 p. 2d ed. New York,
The Macmillan company, 1922. 524 p.

Law as a means to an end. By Rudolf von Ihering. Tr. from
the German by Isaac Husik. 1913. 483 p.

Modern French legal philosophy. By A. Fouill^e, J. Charmont,
L. Duguit, and R. Demogue. Tr. by Mrs. Franklin W. Scott and
Joseph P. Chamberlain. 1916. 578 p.

The theory of justice. By Rudolf Stammler. Tr. by Isaac
Husik. 1925. 591 p.

Science of legal method. By various authors. Tr. by Ernest
Bruncken and Layton B. Register. 1917. 593 p.

The formal bases of law. By Giorgio del Vecchio. Tr. by John
Lisle. 1914. 412 p.

Philosophy of law. By Joseph Kohler. Tr. from the German
by Adalbert Albrecht. 1914. 390 p.

Philosophy in the development of law. By Pierre de Tourtoulon.
Tr. by Martha McC. Read. 1922. 653 p.

Rational basis of legal institutions. By various authors. Edited
by John H. Wigmore and Albert Kocourek. Macmillan, New
York. 1923, 603 p.

i:ntroduction o

It is often said that the French codes, particularly the
Civil code, reflecting the political theories of the Revolu-
tion, were impregnated with the spirit of individualism.
Liberty of contract and individual freedom of action are
not solely American conceptions. Indeed, in France as in
this country they were concepts which played an impor-
tant part in the development of the law. While not em-
bodied in formal constitutional provisions, expressly or by
implication, they were long assumed to be the guiding force
of legislation and judicial interpretation. Within recent
years they have become the battle ground of legislation
and juridical opinion, with a resulting reexamination of
old standards or concepts, and a revival of philosophical
thinking.

One is apt to get the impression that codification arrests
legal development. This was perhaps true during the pe-
riod immediately following the promulgation of the codes,
when legal thought was preoccupied with commentary and
interpretation. But, as a matter of fact, the French codes,
particularly the Civil code, in stating the law in the form
of general principles, left a place for future evolution with
the aid of courts and writers. There is here room for
thought by American jurists who are attempting to restate
our common law. The experience in France — ^undoubtedly
not originally intended — with a pliable and adaptable code,
is somewhat comparable with American experience in con-
stitutional interpi^etation. Recent literature — such as that
from the pen of Professor Geny — pertaining to methods of
interpretation, is well worth consultation.

French contributions in the field of public law are par-
ticularly noteworthy. No other country has progressed so
far in the development of administrative law. The modern
French theory of the legal responsibility of the State for
the torts of its officers is one which could be emulated with
profit in other countries. Likewise, at a time when admin-
istration of criminal justice is receiving serious thought in
America, efforts to meet the problems of crime should be
of particular interest. Here French thought has been
strikingly fertile. The theories of the classical school (to

6 GUIDE TO THE LAW OF FRANCE

which the legislation of the United States still adheres)
and the biological and sociological theories of Lombroso and
Fert*i have been subjected to searching criticism from which
a workable compromise between the classical and modern
social concepts of the functions of criminal law has been
reached. Then, too, much of French thought in the field
of criminology has found its way into legislation either in
the form of revision of the Penal code or additions to it.

Until recently, while in advance of this country, social
legislation in France went through much the same process
as in the United States. The arguments used in the early
opposition to social and industrial legislation sound familiar
to American ears. Here individualism and collectivism have
passed through a struggle which has now culminated in the
enactment of social legislation which is probably com-
parable in merit with the earlier legislation of Germany.

The vast volume of excellent literature produced in Ger-
many and culminating in the German codes has drawn at-
tention from the less spectacular but no less valuable liter-
ature produced in France since the promulgation of the
Napoleonic codes. For the practitioner coming in contact
with legal problems arising out of our constantly growing
international commercial relations and the large number of
nationals resident abroad a working knowledge of this lit-
erature is of importance, not merely because of the position
of France in these respects, but also because of the fact
that French law and its literature occupy such an important
place in the legal systems and legal literature of all civil
law countries. Time will not be taken to discuss in detail
the influence, direct and indirect, of the French codes on the
law of other countries. Interesting short discussions may be
found in Doctor Alvarez's Une nouvelle conception des
etudes juridiques^^ parts of which appear in volume 11 of
the Continental leg(A. history series^ and in Professor
Planiol's Traite eUmentaire,^ A translation of this latter

* Alvarez, A. tine nouvelle conception des etudes juridiques et de
la codification du droit civil. Paris, Pichon et Durand-Auzias, 1904.
2a4 p.

''Planiol, M. F., et G. Ripert. Traits 616mentaire de droit civil.
10. ^d. Paris, Librairie g^n^rale de droit et de jurisprudence, 1926-
2T. 3 V. (11. ed., v. 1- 192.S- .)

BIBLIOGRAPHY (

discussion also appears in the first volume of the Oontinentcd
legal history series (p. 302). The second volume of the
Livre du centenaire^ published in 1904 on the occasion of the
hundredth anniversary of the Civil code, contains a valuable
collection of articles by legal scholars of a number of civil
law countries.

One could hardly presume to pass judgment unaided on
the literature of a foreign system of law. Necessarily, re-
course has been had to the opinions of French jurists. The
writer wishes to express his appreciation of the aid re-
ceived from the members of the Paris law faculty without
whose help it would have been impossible to gather the
material which forms the subject matter of this volume.
Appreciation is also due Yale University, Professor Bor-
chard, and the staff of the Law Library of Congress, par-
ticularly Miss Olive M. Jack, Chief Assistant to the Law
Librarian, Mr. John T. Vance.

BIBLIOGEAPHY

Until the recent publication of Grandin's B%bliogTafphie
des sciences juridiqioes '^ there was no comprehensive modern
bibliography of French legal literature. Grandin's bibli-
ography, however, is undoubtedly one of the most useful
pieces of work of its kind. Covering the period from 1800
to 1926 it gives an exposition of French legal publications
as well as of those published in the French language in
other countries, thus constituting in addition a bibliography
of a large part of the legal literature of Belgium and
Switzerland. The plan followed is that of division ac-
cording to general subject matter, with Eoman law, legal
history, civil law, commercial law, etc., forming distinct
headings. The material under each heading is classified
alphabetically. It is worthy of remark that the material
covered includes, in addition to strictlj^ legal subjects, politi-
cal economy and sociology. In his preface M. Grandin
states that it is the intention of the publishers to keep the

"Le Code civil. Livre dn centenaire. Paris, Rousseau, 1904. 2 v.

'Grandin, A. BibUographie g^n^rale des sciences juridiques, poU-
tiques, ^conomiques et soeiales. Paris, Recueil Sirey, 1926. 3 v. 1^^
Supplement, 1926 et 1927. Paris, 1928. 234 p. 2 * Supplement, 1928.
Paris, 1929. 167 p. 3 ^ Supplement, 1929. Paris, 1930. 186 p.

8 GUIDE TO THE LAW OF FRANCE

work up to date through annual supplements. Three such
have been published. Attention should also be called
to the fact that the use of the bibliography is facilitated
through the inclusion of an exhaustive subject and author
index.

French bibliographic material then in existence was de-
scribed in detail in 1913 by Professor Borchard, at that
time Law Librarian of the Library of Congress, in his useful
Bibliographif of international laiA cmd continental law^
(pp. 55-62) . Much of the material discussed by Mr. Borchard
has been superseded by Grandin's work, but there are sev-
eral important bibliographic sources which still merit special
consideration. Grandin's publication does not profess to
include legal literature or historical sources prior to 1800,
with the result that recourse must be had to other publica-
tions for earlier material. A useful list of French legal
bibliographies is to be found in Dr. Fuchs' Juristische
hucherhunde^ items 1327-1386.^^

The best bibliography of early French legal literature is
that contained in the second volume of Dupin's fifth edition
of Profession (Pavocat,^ Originally the work of Camus, it
was first published in 1772 and went through five editions,
the fourth and fifth having been edited and revised by
Dupin, a leading lawyer of his time. The bibliography is
particularly valuable for its critical discussions. The last
50 pages are made up of historical and critical notes on a
number of notable French books which are remarkable for
their permanence in authority and for their originality.
The literature dealing with the history of French law and
its sources is also discussed in a work by Gavet, published
jn 1899." Gavet's work, however, is difficult to read, and

' Borcharcl, E. The bibliograpliy of international law and continen-
tal law. Washington, Govt, print, off., 1913. 93 p.

^« Fuchs, Wilhelm. Juristiche btieherkunde. 3. aufl. Irinz, Franz
Winkler, 1928. vii, 245 p.

® Camus. Profession d'avocat. 5. ed. Paris, War^e, 1832. 2 v.
(4. and 5. Ms. revised by Dupin.)

*'' Gavet, G. Sources de I'histoire des institutions et du droit
frangais; manuel de bibliographie historique. Paris, Larose, 1899.
783 p.

BIBLIOGRAPHY 9

its original reputation may have been dimmed by latter-
day investigations by French scholars. The source material
prior to the official compilation of customary law in the fif-
teenth century was dealt with by Koenigswarter ^^ in 1853.
Two useful works containing historical material are Warn-
koenig's Franzosische staats-und rechts-geschichte^^ and
Brissaud's History of French private lawP The histories
of French law by Glasson ^^ and Viollet ^^ are likewise use-
ful as bibliographic sources of historical material, but the
latest as well as most accurate discussion of historical sources
is that contained in Professor Chencm's ^® recent history of
French law, in which the learned author devotes a consid-
erable part of the treatment of each period of legal history
to the source material.

Unfortunately a work as large as that, of Grandin
can not pretend to be descriptive or critical. In his Biblio^
graphie raisonnee du droit civil^'^ published in 1879, Dra-
mard listed French books and articles relative to the Gvil
code under their appropriate headings, giving descriptive
and, occasionally, critical notes. While now somewhat old,
the Bibliographie raisonnee is still well worth consulting.

A number of publications devoted to French law give use-
ful bibliographic notes. The different encyclopedias which
will be discussed in a later chapter give a bibliography for
every important subject. Particularly extensive bibliog-

" Koenigswarter, L. J. Sources et monuments du droit frangais
ant^rieurs au xv^si^cle, ou Biblioth^que de Thistoire du droit civil
frangais depuis la premiere origine jusqu'^ la redaction oflScielle des
coutumes. Paris, Durand, 1853. 132 p.

"Warnkoenig, L. A., und Stein, L. Franzosische staats-und rechts-
geschichte. 2. aufl. Bale, 1875. 3 v.

"Brissaud, J. Manuel d'histoire du droit frangais. Paris, Fonte-
moing, 1898-1904. 1,892 p.

"Glasson, E. Histoire du droit et des institutions de la France.
Paris, Pichon, 1887^1903. 8 v.

^'^ Viollet, P. Droit priv6 et sources. Histoire du droit civil
frangais. 3. €d. Paris, Larose et Tenin, 1905. 1,012 p.

"Ch6non, E. Histoire gen^rale du droit frangais public et priv§,
des origines k 1815. Paris, Recueil Sirey, 1926-29. 2 v.

" Dramard, E. Bibliographie raisonnee du droit civil. . . . Paris,
Firmin-Didot et cie, 1879. 371 p.

10 GUIDE TO THE LAW OF FRANCE

raphies accompany the essays and monographs in the Refer-
toire generdL alphabetique?-^ A number of recent publica-
tions dealing with some particular branch of the law con-
tain bibliographic notes. In the field of civil law, the ele-
mentary work ^^ of Professors Planiol and Ripert has copi-
ous references to other treatises as well as to monographs
and theses. These distinguished writers also give an ex-
cellent critical discussion of the leading treatises on civil
law. The various treatises which make up the Collection
Thaller^ on commercial law,^^ contain bibliographic notes.
In private international law, penal law and Roman law the
treatises of Professors Weiss ^^ and Pillet,^^ that of Pro-
fessor Garraud ^^ and the manual of Professor Girard,^^ re-
spectively, give important bibliographic references. In con-
nection with Roman law, mention should also be made of
an important recent bibliography, Bibliographie des travaux
de droit romain en lanme frangcdse^ prepared by Professor
CoUinet of Paris and published by Sirey.

Periodical sources of French legal bibliography are not
numerous. The Librairie DMoz publishes a bibliography
as a supplement to its court reports, and valuable book re-
views and bibliographic lists are published in a number of
important periodicals, such as the Nouvelle revue Tmtorique^

*^ Repertoire general alphab^tique du droit frangais, pub. par A.
Carpentier et G. Fr^rejouan du Saint. Paris, Librairie de la Soci^te
du Recueil general des lois et des arrets, 1886-1906. 37 v. Supple-
ment. 1911-28. 7 V.

^'^ Planiol, M., et G. Ripert. Traite elementaire de droit civil.
10. €d. Paris, Librairie gen^rale de droit et de jurisprudence. 1926-
27. 3 V. (11. 6d., V. 1- 1928- .)

^^Tballer, E. Traite general theorique et pratique de droit com-
mercial. Paris, Rousseau, 1907-26. The collection, incomplete, con-
sists of nine volumes covering partnerships, transportation, maritime
law, and bankruptcy. Hee Commercial law (p. 104, note no. 4).

^ Weiss, A. Traite theorique et pratique de droit international
priv^. 2. ^d. Paris, Larose et Tein, 1907-13. 6 v.

^^Pillet, A. Traite pratique de droit international priv^. Paris,
Recueil Sirey ; Grenoble, AUier, 1923-24. 2v.

^'Garraud, R. Traits theorique et pratique du droit p^nal fran-
gais. 3. ed. Paris, Larose et Tenin, 1913-24. 5 v.

'^Girard, P. Manuel Elementaire de droit romain. 7. Ed. Paris,
Rousseau, 1924. 1,138 p.

BIBLIOGRAPHY 11

Revue trvmestrielle de droit civile Revioe penitentiaire^ and
Revue du droit public. It might be stated in passing that
the book reviews in the Noumelle revue and the Revue
trimestrielle have the reputation of being particularly
good.

Several of the more important legal publishers publish
useful bibliographic catalogues of modern and curr'ent
literature. The Bihliographie pratique of the Recueil Sirey
and the Bihliographie generate et complete of Godde, while
not as valuable as the bibliography by Grandin, may be
consulted with profit. The annual and monthly catalogues
of the Lihrairie Arthur RousseoM are also well worth
consulting.

Before passing on to the general bibliographies of French
literature, attention should be called to two student guides
which contain useful information as to the more important
French legal works. Professor Capitant's little book, Oom-
ment il famt faire m these^^^ in addition to giving informa-
tion as to the steps to be taken by a candidate for the
doctor's degree and the best method for preparing a thesis,
also contains a chapter devoted to bibliography, in which the
more important general publications are discussed. A
former librarian of the Paris Law School, Gautier, pre-
pared a Guide ^^ to the library in 1919. While the infor-
mation given is somewhat meager, it contains a valuable
general description of the material in the library as well
as important information as to its use.

In addition to the bibliogr'aphic material devoted particu-
larly to legal literature, there are several publications cover-
ing the entire field of French literature which may be of
use in connection with legal works. The Catalogue general
de la Lihrairie franqaise^'^ begun by Lorenz and continued
by Jordell and Stein, covers practically all literary produc-
tions between 1840 and 1921. La hihliographie de la Fram^ce^

'^ Capitant, H. Comment il faut faire sa th^se de doctorat en droit.
2. 6d. Paris, DaUoz, 1928. 87 p.

^Gautier, J. La biblioth^que de la Faculty de droit de Paris.
Guide k I'usage des ^tudiants. Paris, Recueil Sirey, 1919. 58 p.

^^ Lorenz, Jordell, Stein. Catalogue g§n6ral de la Librairie fran-
gaise. 1840-1921. Paris, Champion, 1867-1927. 29 v.
49926°— 31 2

12 GUIDE TO THE LAW OF FRANCE

Jowrndl genercbl de Vimprimerie et de la Lihfcmie appears
weekly and liste the works alphabetically, according to
names of authors, with a classified supplement, La serrmine
du livre^ cumulated monthly as Les livres du mois. An
author index and a classified subject index are published
annually. It covers all books deposited with the Ministry
of the Interior in compliance with French copyright laws.
The Bibliotheque Nationale published the Bulletin mensuel
des recentes publications franqahes^ from 1882 to 1920 and
the Bulletin 7n)ensuel des fuhlieations etrangeres from 1877
to 1921. It now issues the Bulletin des acquisitions,

LAW LIBEAEIES

Some reference might be made at this point to the more
important libraries.

As would be expected, the Bibliotheque Nationale^ occupy-
ing in France the same position as the British Museum
in England and the Library of Congress in this country,
contains the richest collection of legal literature and
historical documents. As it is visited daily by thousands,
better results can often be obtained by using 3ome of the
smaller libraries. The Bibliotheque Sainte Genevieve^ also
a general library, is likewise rich in French legal works.

Of the libraries devoted especially to legal publications,
the more important are those of the law schools. Naturally
that of the Paris school is the most important. Consisting of
somewhat over a hundred thousand volumes, its collection
is now increasing at the rate of about 5,000 books and pam-
phlets a year through purchase, gift, and exchange. The
exchange of theses with French and foreign universities
has permitted the library to build up an excellent collection
of this type of legal works which, due to the limited number
published, are often difficult to obtain.

Another important law library is the Bibliotheque de
Vordre des avocats at the Palace of Justice. Other libraries
are the Bibliotheque de legislation etrangere at the Ministry
of Justice, containing a unique collection of the literature
relating to the legislation of practically all countries in the
world; the Bibliotheque de la SocietS de legislation com-
paree, containing about 22,000 volumes devoted to interna-

LAW LIBRARIES 13

tional law and French and foreign legislation ; and the Bib-
liotheque de la Prefecture de la Seine^ which is particularly
rich in publications concerning administrative law.

Several of the libraries just referred to have printed
catalogues which require mention. The library of the Bar
association published catalogues ^^ in 1866-67 and 1880. The
library of the prefecture of the Seine published a 2-volume
catalogue 29 in 1892 and 1898. A catalogue ^^ of the
Bibliotheque de la Societe de legislation comparee was be-
gun by Christian Daguin and completed by Fernand Daguin.
A second edition v/as published in 1899. Several years
ago the Office de legislation etrangere began the gigantic
task of preparing a synthetic catalogue or encyclopedia of
the juristic literature of the world based on the catalogues
of such libraries as the Library of Congress and other
national libraries. While the library of the Paris Law
School has no printed catalogue its card indices give com-
plete references to general works and theses. In addition
there is a complete index of the articles appearing in the
reviews received by the library.

LAW PUBLISHEES

Some mention should be made at this point of the princi-
pal law publishers. The Lihrairie Dalloz^ or as it is often
designated Dalloz^ had its origin in the court reports es-
tablished by Desire Dalloz, who in 1822 took over the
direction of the Journal des audiences de la Cour de Cassa-
tion^ the; precursor of Dalloz periodiqus. (Court reports,
infra,) In 1845 Desire and Armand Dalloz began the pub-
lication of an encyclopedia, and since then the Lihrairie

^^ Catalogue des Uvres imprimes de la Biblioth^ue des avocats k la
Cour imp^riale de Paris. Paris, Durand, 1866-^7. 2 v. Catalogue des
livres imprimis de la Bibliotheque des avocats ^ la Cour d'appel de
Paris. Tome I. Th^ologie et jurisprudence. Paris, Durand, 1880.
486 p.

''® Catalogue de la Biblioth&que administrative de la Prefecture
du d^partement de la Seine. (Section ^trangdre) Paris, Imprimerie
nationale. 1892. 711 p. (Section fran<:aise) Paris, Imprimerie
municipale, 1898. 890 p.

^ Daguin, C. Catalogue de la Bibliotheque de la soci6t6 de legisla-
tion comparee. 2. 6d. Paris, Pichon, 1899. 599 p.

14 GUIDE TO THE LAW OF FRANCE

DaUoz has been publishing, in addition to court reports
and encyclopedias, annotated editions of the codes, treatises,
and monographs covering the entire field of law. The
SoGiete anonynw du Reoueil Sirey had its origin in the
court reports established by J. B. Sirey at the end of the
eighteenth century. The present company represents an
amalgamation of a number of publishing houses, and, like
Dalloz, publishes annotated editions of the codes, encyclo-
pedias, treatises, and monographs covering the entire field
of the law. In this connection attention should be called
to the fact that the annotated codes cited under the name
Sirey are not published by the Recueil Sirey but by G.
Godde, likewise an important publisher of legal works.
The Librairie Arthur Rousseau is also important, and men-
tion should be made of the Librairie generate de droit et de
jurisprudence, Giard and Briere, now conducted under
the name of Marcel Giard, were at one time among the
most progressive publishers of France and are responsible
for the publication in French of some of the more notable
German, Italian, and other foreign works on law, economics,
and sociology.

All these publishers are also booksellers and have their
offices on Kue Soufflot. As an important center of legal in-
terest this street has acquired world fame.

LEGISLATION

The modern era of French legislation begins with the pro-
mulgation of the Civil code in 1804. Historically, however,
the assumption of national sovereignty by the Assembly on
June 17, 1789, marks the end of the old and the beginning
of a new legislative regime. Legislation prior to 1789 is
properly a part of legal history and will be discussed in
connection with that subject in a subsequent chapter.

The general growth of the law through legislation, par-
ticularly with reference to civil law subsequent to 1804,
has been dealt with by a number of writers such as Pro-
fessors Charmont, Duguit, and Morin, whose works will be
referred to again in connection with the discussion of the
Civil code. A very good summary may be found in the
Traite elementaire de droit civil by Professors Planiol and

LEGISLATION 15

Ripert (v. 1, pp. 39-48) and the Cours eUmentawe de
droit civil by Professors Colin and Capitant (v. 1, pp.
21-24). The civil legislation from 1789 to 1804, usually
called the intermediary period, was made the subject of a
special study by Sagnac in La legislation civile de la Revo-
lution frangaise^^ published in 1898. The subject is, of
course, dealt with as historical material in legal histories
which go beyond the end of the ancien regime.

The oflScial publications recording French legislation, in- official
eluding laws and decrees, are the Jowm^al offioiel or Official ^"bii*^^-
Gazette and the Bulletin des lois. The former first appeared
on May 5, 1789, under the title Moniteur universel and be-
came the official organ of the Government in 1799. In
1869 the Moniteur^ without changing its form, became the
Journal o-fficiel de VEmpire frangais; and on September 5,
1870, the name was changed to Journcd officiel de la Repub-
ligue frOThgaise, The Journal appears daily and forms an-
nually from 12 to 15 volumes. The portion containing laws
and decrees is issued separately. The Bulletin des lois^
which was created by the convention through an act of
December 4, 1793, began publication June 13, 179^ (25
prairial, year ii). Since 1832 it has been published in two
parts — ^the principal part (subdivided in 1909 into two
sections) containing laws and decrees of general interest and
special and local laws and the supplementary part containing
special and local decrees. The Bulletin appears bimonthly
and usually forms two volumes per year. The legislation
of the revolutionary period, prior to June 10, 1794, the date
of the first act in the Bidletin^ is contained in an 18-volume
publication, ordinarily designated under the title Collection
generdle des lois. In 1806, the earlier edition haviii,g be-
come rare, a new and abridged edition in eight volumes was
published under the title Lois et actes dw Gouwemement,
This later edition is usually designated as forming the first
part of the Bulletin des lois. The Bulletin is published
by the Government press.

The official publication of laws and decrees is important
in determining the time at which they go into effect. The

^Sagnac, P. La legislation civile de la Revolution frangaise
(1789-1804). Paris. Hachette; Fontemoing, 1898. 445 p.

Publica-
tions

16 GUIDE TO THE IjAW OF FRANCE

present system was inaugurated by a decree of November
5, 1870, which, modifying article 1 of the Civil code, pro-
vides that a new law is effective in each arrondisseTnent a
full day after the copy of the Journal officiel in which it is
contained arrives at the seat of the arrondAsse7rbe<nt, The
same decree also provides that the insertion in the Bullet in
of a law not published in the Journal operates as promulga-
tion. With respect to decrees the same system ordinarily
applies to those which are published in the Journal officiel^
but the Government may provide that a decree become effec-
tive immediately. Good short discussions of the promulga-
tion of laws appear in the elementary treatises of Professors
Planiol and Ripert and Colin and Capitant.
Private Both the J oumol offlciel and Bulletin are difficult to use

for research purposes, though there are indices to each.
Better results can be obtained by referring to private publi-
cations. Of these the most complete is the OollectioTi com^
plete des lots ei deerets d^interet general^ which was founded
by Duvergier and continued by Bocquet. It appears
monthly and is published by the Recueil Sirey, Legisla-
tion from 1788 through 1830 was published in a 30-volume
edition between 1825 and 1831, and since then a volume has
been added each year. Each volume contains an index, and,
in addition, there are separate indices for the periods from
1831 to 1889 and 1890 to 1899.

The principal legislative acts also appear in the Annumre
de legislation frangaise^ with important commentaries. This
annual collection of laws has been published since 1882 by
the Sodete de legislation cormparee, A periodical, Lois
TiouvelleSj likewise published since 1882, reports important
legislation. This useful publication, which appears bi-
monthly, is made up of two parts — ^the first containing com-
mentaries on legislation, and the second legislative texts
without commentary.

Collections of important legislative acts, often with valu-
able notes and commentaries, are published by the Recueil
Sirey and the Lihrairie Dalloz, The Lois annotees of the
Recueil Sire^y is an appendix to the court reports {Recueil
general) of the same publishers and appears monthly.
These annotated laws, however, form a separate collection.

LEGISLATION 17

The laws from 1789 through 1848 are contained in two
volumes — ^those from 1849 through 1854 and from 1855
through 1860 in a third and fourth volume and since 1861 in
one volume for every five years. The annotated laws pub-
lished by Dalloz appear in the fourth part of its Recueil
periodique {infra).

Since 1918 Dalloz has also been publishing monthly texts war Leg-
of laws and decrees in its Bulletin legislMif. This latter ^^**^^^
publication is a continuation of an important 26- volume col-
lection of war legislation and regulations which was pub-
lished under the title Guerre de WUf.. It is sometimes called
Collection rouge. The Recueil Sirey published a somewhat
similar collection, Legislation de la Guerre^ consisting of
12 volumes. In this connection reference should be made to
Let legislation des annees de guerre,, in two volumes, which
gives texts and analyses of war legislation. This publica-
tion, in two volumes, was compiled by Colin and published
by Godde.

Strictly speaking, codes are legislative acts, but the codes and
official and private editions of the different codes will be^^
discussed later in connection with the discussion of their
subject matter. Attention should be called, however, to
the fact that the annotated editions are annotated to both
court decisions and legislative acts, the latter being ordi-
narily set forth in full. A number of publishers issue all
the codes in one collection along with the existing legis-
lation in force (Lois usuelles). The more important col-
lections of this type are those cited under the names of
their compilers, Koger and Sorel,^^ Eiviere,^^ and Carpen-
tier.^* Only the last seems to have been kept up to date.
The twentieth edition was edited by Colin ^^ and consists
of two volumes, one devoted to the codes and the other

*^ Roger, A., et Sorel, A. Codes et lois usueUes class^es par ordre
alphaMtique. Paris, Garnier, 1882. 2 v.

''Riviere, H. Codes frangais et lois usueUes. Paris, Pichon et
Durand-Auzias. 1914. 2 v.

^Carpentier, A. Codes et lois pour la France, I'Alg^rie et la
Tunisie. 19. ^d. Paris, Marchal et Godde, 1914. 2 v.

^ Colin, P. Codes et lois pour la France, 1' Algeria et les colonies.
20. ^d. Paris, Godde, 1924-25. 2 v. Supplement. 1927. 478, 63 p.

18 GUIDE TO THE LAW OF FRANCE

(sold separately) to legislative enactments. It is kept up
to date through a publication called La semaine jvjHdique,
A very good but smaller publication in the nature of a
handbook was until recently published by Dalloz under
the title Codes d}(mdAence?^ The five codes are united in one
publication under the title Petits codes et lois Oarpentier.^'^
published by Sirey. When completed it will include
existing legislation.

TEEATIES

There are two important French collections of treaties.
The Recueil des traites de la France ^^ was compiled by de
Clercq and covers the period from 1713 to 1906. The col-
lection of Traites et conventions en vigueur^^ is an official
publication of the Ministry of Foreign Affairs and was
compiled with the assistance of Professor Basdevant of the
University of Paris. Franco-American treaties are also
reported in Malloy's Treaties^ conventions^ and agreements
and in the Treaty series printed at the United States Govern-
ment Printing Office.

COURT REPORTS

Doctrine When dealing with interpretation of legislative acts, in-
cluding codes. French legal writers often employ the terms
" doctrine " and " jurisprvden^ce.'^'^ The former applies to in-
terpretation by text writers whose treatises, to employ an
expression of Professors Planiol and Ripert, occupy much
the same position in legal science as public opinion does in
politics. As persuasive authority they are the directive
force of both legislation and judicial decision.

^ Codes d'audience. 17. M. Paris, Dalloz, 1926. 477, 53 p.

^^ Oarpentier, A. et E. Petits codes et lois Carpentler. Paris,
Recueil Sirey, 1929. 2 v.

^® Clercq, A. de. Becueil des traites de la France, pub. sous les
auspices du Minist^re des affaires ^trangdres. 171S-1906. Paris,
Amyot; Pedone, 1864-1917, 23 v. Vol. 23, incomplete, in two parts.

^^ Basdevant, J. Traites et conventions en vigueur entre la France
et les puissances ^trangeres (Publication officielle du Ministere des
affaires ^trang^res). Paris, Imprimerie nationale, 1918--22. 4 v.

and Juris-
prudence

COURT REPORTS 19

The term " jurisprudence " is applied to court decisions. Authority
It would seem from the provisions of the Civil code that Decisions
judicial decisions can never technically acquire the force
of law. Article 5 in effect forbids a court to attribute to a
decision the binding force of precedent. Under article 1351
the effect of a decision of a court is limited to the parties.
But in his Irvtroduotion a Vetude dni droit civil ^^ (p. 54 et
seq,) Professor Capitant states that as a matter of fact, in
spite of these provisions, judicial decisions enjoy an authority
comparable with that of the written law. When a legal
question is first submitted to lower courts for decision
they may reach different results, but after the matter has
been submitted to the court of last resort, Cowr de Oassa-
tion^ the solution of the latter is ultimately followed by all
courts and the law " is settled " or, to use a French ex-
pression, the "jurisprudence becomes fixed." While a re-
versal of former decisions is always possible it occurs but
rarely and then, only, when conditions demand it. As a
result the decisions of courts, particularly the Cour de Cas-
sation^ are cited by counsel and occupy in French legal
literature a position which is only secondary to that of the
codes and statutory law.

Judicial organization will be discussed in connection with
procedure, but it would not be out of place to mention here
that the decisions of the Cou^ de Cassation as the court of ca!Ltion
last resort are the most important. The decisions of the
court are reported in an official publication, Bulletin des
arrets de la Cour de Gctssation^ published by the Govern-
ment press. Divided into two parts, the Bulletin has re-
ported civil cases since 1792 and criminal cases since 1798.
The civil series reports only those cases which come before
the Chamhre civile^ and not decisions of the Chmnhre des
requetes rejecting applications for review. While valuable,
in that it gives all the decisions of the criminal and civil
chambers, the Bulletin is not habitually consulted by law-
yers and therefore is not as important a part of legal litera-
ture as the reports published through private enterprise.

** Capitant, H. Introduction k T^tude du droit civil. Notions
g§n§rales. 4. M. Paris, Pedore, 1922. 455 p.

20 GUIDE TO THE LAW OF FRANCE

Of these the most valuable are those published by Dalloz
and Sirey.
Private The RecueU periodique et critique^ generally known under

Reports ^^ name of Dalloz or DcMoz perio(Mqwe^ had its origin in
the JouTnal des audiences de la Cour de Gassaiion^ a court
report which was originally limited to decisions of the Oour
de Cassation, Published after 1822 under the direction of
Dalloz, the Jov/mal took the name of its director in 1825.
The present report was founded in 1845. It appears
monthly, forming a volume a year, and is divided into four
principal parts: (1) Decisions of the Court of Cassation;
(2) decisions of appellate courts and courts of original juris-
diction (tribimaux) ; (3) administrative decisions; and (4)
laws and decrees along with legislative reports and discus-
sions. In addition, a fifth part contains head notes of court
decisions {sonv}ruiires) . The Recueil periodique is com-
pleted by alphabetical subject-index digests {tables). The
index for the period from 1845 to 1867 consists of two vol-
umes. For the period from 1867 to 1907 there is a one-
volume index for each ten j^ears, and since the latter date one
volume for every five years. Inasmuch as some of the vol-
umes of the reports between 1845 and 1897 are difficult to
procure, the indices for the periods prior to the latter date
may be used as a supplement to the reports. Dalloz also
reports weekly, in its Recueil hehdomadaire de jwrisprvdence^
begun in 1924, the text of decisions of particular interest.
This publication contains a special part, entitled chronique^
consisting of short articles on legal matters. Citations to
the Recueil periodique give the year, the part, and the page,
e. g., D. P. (or D.), 1900.2.350. Citations to the Reci&eil
hehdoniadaire give the year and the page, e. g,^ D. H.
1924.189.

The Recueil geTieral des lois et des arrets de Sirey goes
back to 1791. Decisions prior to 1830 are collected in a
9-volume publication. At present the RecueU appears
monthly, and since 1830 it has formed a volume a year. The
publishers are now engaged in preparing a 20-volume
abridged reprint of the reports covering the period from
1791 to 1900 {Refonte du Recueil Sirey) of which nine
volumes reporting decisions from 1876 to 1900 have alread}^
appeared. Each volume of the Recueil is divided into four

COURT REPORTS 21

parts: (1) Decisions of the Court of Cassation; (2) de-
cisions of appellate and lower courts; (3) administrative
decisions, and (4) foreign decisions. Like the RecueU
periodique of Dalloz the Recueil general is also supple-
mented by a valuable publication containing head notes
{sommai/res) called Recueil des sommaires. As already
stated, legislative acts and decrees are reported in Lais
annoteeSj which, while an appendix to the court reports, are
published separately. An extremely important part of the
Recueil Sirey is its alphabetical subject-index digest {tables).
That for the period from 1791 to 1850 consists of four
volumes, and between 1850 and 1910 six decennial volumes
were published. Since 1910 there has been a volume every
five years. This index digest is particularly valuable, inas-
much as it gives, in addition to references to decisions, a
resume of diverse opinions of text writers.

Citations to the Reciml general give the year, the part,
and the page, e. g,^ S. 1903.1.5.

Two other important reporters were published during
the nineteenth century but were absorbed into the Recueil
general published by Sirey.

The Pandectes frangaises^ forming one volume annually,
began publication in 1886 and was combined with the
Recueil general in 1908, continuing, however, to appear,
until recently, under separate cover. The collection includes
Pandectes chronologiques reporting decisions from 1789 to
1886 and forming the first six volumes of the complete set.

The Jownal du palais also began publication as a dis-
tinct periodical. Decisions from 1791 through 1836 were
collected in a 27-volume edition in 1837, and beginning with
that date, one volume was published annually. In 1866 the
Journal was united with the Recueil general. From then
on its content was the same though the cover remained dif-
ferent. In 1924, the Pandectes fran^aises^ the Journal du
palais^ and the Recueil were definitely combined into one
publication with the same content and cover.

While the reported decisions of the courts are in them-
selves of value, an important feature of the private reporters
which have just been mentioned consists of the notes and
commentaries which accompany the cases. The unique sys-

22 GUIDE TO THE LAW OF FRANCE

tern of combining court decision and commentary has, it is
believed, a value which would be well worth consideration
by publishers in this country. The comments are not merely
annotations of previous decisions, like L. R. A., but critical
comment by an authority on the order of our case notes
and comments in legal periodicals. Combining the func-
tions of a court reporter and case notes and comments the
French system not only serves the useful purpose of fur-
nishing the lawyer valuable information with respect to
the reported case, but, at the same time, through whole-
some criticism by leading authorities, permits the bar and
the teaching profession to bring to bear on the shaping of
the law their accumulation of knowledge and thought. Un-
like those of the law reviews of this country, the editorial
staffs of the two leading reporters include lawyers, judges,
and teachers. One of the results of this combination has
been to bring the bench and the bar and the practitioner
and teacher into closer contact, with the result that doctrine
and jurisprudence instead of working at cross purposes
are engaged together in the problem of shaping and ap-
plying the law. An interesting article by Professor Meynial
on case comments and notes appears in the Livre du cente-
naire (v. 1, p. 173), under the title Les recueils d'^arrets.

In addition to the monthly publications just discussed,
there are a number of important daily legal journals which
also report court decisions. They are the Gazette du
pcdais^ the Oiteette des trihimcmxj the Loiy and the Droit;
the first two also publish, monthly, the decisions already
reported in the dailies. The Gazette du palais began pub-
lication of its monthly reports in 1881 and the Gazette des
tribunaux in 1898. Both form several volumes annually
and like the reporters already mentioned contain valuable
commentaries.

Besides the reporters, devoted to court decisions generally,
there are a number of important publications which report
decisions relating to some particular field of the law. Deci-
sions in commercial matters are reported monthly in the
Journal des trihurumiw de cormnerce which was founded in
1852. Cases involving maritime as well as other commercial
matters are reported in several periodicals published in im-

COURT REPORTS 23

portant commercial centers and sea ports. These include
the Journal de jurisp^'udence commerciale et inafritirrie^ Pub-
lished at Marseilles; Jurisprudence coTwmerciale et mari-
time de Namies^ founded in 1859 and since 1923 published
by the bar of Nantes and the Recueil de jurisprudence com-
Tnerdale et maritiine du Hafvre^ founded in 1855.

The most complete report of administrative decisions is
the Recueil des arrets du Conseil (FEtat^ a monthly publica-
tion, which was founded in 1821. It is sometimes referred
to as Recueil Panha/rd^ after its founder, and is often called
Recueil Leion^ after one of its later directors. It should be
recalled that both Dalloz and Sirey devote a special part
of their reports to administrative decisions.

In addition to reporters, a number of the more important
periodicals — which will be discussed in connection with their
subject matter — contain sections devoted to court decisions.

ENCYCLOPEDIAS— DICTIONARIES

Legal encyclopedias, giving as they do a general exposi- Encycio-
tion of legislation, doctrine, and jurisprudence, naturally p^^^
constitute an important and valuable part of French legal
literature. Consisting of separate treatises and mono-
graphs, arranged alphabetically according to subject mat-
ter, they cover the entire field of the law or sometimes a
particular branch. Of those covering the whole of the law,
the most important are the Repertoire general alphabetique
and the Repertoire pratique.

The Repertai/re general alphabetique^^^ in 37 large vol-
umes, was published between 1886 and 1906 under the direc-
tion of Fuzier-Herman, a former magistrate; Carpentier,
an advocate; and Frerejouan du Saint, also a former magis-
trate. A supplement of about 10 volumes is now being
prepared by the Recueil Sirey under the direction of
Frerejouan du Saint and Professor Eugene Godefroy. At
present, volumes 1 to 7 have appeared. It is usually cited
under the name Fuzier-Herman.

** Fuzier-Herman, E., Carpentier, A., et Frerejouan du Saint, G.
Repertoire general alphabetique du droit frangais. Paris, Recueil
Sirey, 1880-1906. 37 v. Supplement, 1911-28. 7 v.

24 GUIDE TO THE LAW OF FRANCE

The Repertoire pratique^^^ although less voluminous than
the Repertoire general^ gives a very practical and valuable
exposition of French legislation and decision. The entire
publication consisted originally of 12 volumes, which ap-
peared between 1910 and 1926. A 2- volume supplement has
now been added, having been published in 1927 and 1929.
In addition, Dalloz published during the course of the
last century a more extensive encyclopedia which, while
still valuable, is unfortunately somewhat out of date. This
publication, Repertoire methodique^^^ was compiled between
1845 and 1870. A supplement was added between 1887 and
1897.

More recently a somewhat similar publication, Juris-clas-
seurs^^^ has been added to the list of modern encyclopedias.
The entire collection consists of a number of different parts
designated under the headings civil^ penal^ procedure civile^
commercial^ societeSj notariat^ enregistrcTnent, The publi-
cation is made up of interchangeable sheets which are kept
up through addition or replacement by new sheets. While
the plan may be a good one, the Juris-cldssewrs does not seem
to be as popular with the teaching profession as the other
encyclopedias. It is, however, often recommended by prac-
titioners.

^'^DaUoz. Repertoire pratique de legislation, de doctrine et de
jurisprudence, par G. Griolet, O. Verge, C. Koeliler et W. Robinet.
Paris, Dalloz, 1910-26. 12 v. Supplement. 1927-29. 2 v.

*^ Dalloz, D. Repertoire methodique et alphab^tique de legislation,
de doctrine et de jurisprudence. Paris, Dalloz, 1845-70. 44 v.
Supplement, 1887-97. 19 v.

** Juris-classeurs. Paris, Librairie des Juris-classeurs. Godde.
The coUection was made up of the following parts at the end of 1927 :
Civil : Code civil annote, 18 v. ; Jurisprudence, 2 v. ; Annexes, 2 v.—
Procedure civile : Code de procedure civile annote, 5 v. ; Jurisprudence,
1 v.; Formulaire analytique de procedure civile, 3 v. — Commercial:
Code de commerce annote, 4 v. ; Jurisprudence, 1 v. ; Annexes, 2 v. —
penal et d'instruction criminelle : Code penal annote, 2 v. ; Code dln-
struction criminelle annote, 2 v.; Jurisprudence, 2 v. — Accidents du
travail: Textes, 1 v.; Commentaire, 2 v.; Jurisprudence, 2 v.— So-
cietes : Traite, 9 v. ; Formules annotees, 2 v. — Justice de paix, 5 v. —
Notarial : Repertoire doctrinal, 26 v. ; Formules, 16 v. ; Recueil, 1 v. ;
Fiscal, 2 V. ; Enregistrement, 2 v. The publishers intend to add other
volumes to the various parts.

ENCYCLOPEDIAS — ^DICTIONARIES 25

The Novmeau repertoire^^^ usually cited under the title
Pandectes fran^aises^ is also an excellent comprehensive
piece of work, but its place has been largely taken by the
encyclopedias just mentioned. The original encyclopedia
was published between 1886 and 1905 and a 4-volume sup-
plement appeared between 1907 and 1910.

In connection with encyclopedias, mention should be
made of the much earlier and extremely popular encyclo-
pedic works of Merlin. His Repertoire universel *^ was
published in a fifth edition in 1827 and 1828 and his Ques-
tions de droit ^'^ in a fourth edition between 1827 and 1830.

Encyclopedias devoted to particular branches of the law
will be discussed in connection with their subject matter.

The most complete French legal dictionary is the Die- Diction-
tionnaire pratique^^^ published by the Lihrairie Dalloz in^"^'
encyclopedic form.

There are several small Anglo-French legal dictionaries.
The more recent include a Dictionary of Anglo-Belgian
law^^ by Anspach and Coutanche, A French- English dic-
tionary of legal and commercial terms ^^ by Graham Olver,
and Dictionnmre juridique anglais- frangais^^ by Fernand-
Laurent and Daumas. There is also an earlier French'

English dictionary of legal words and phrases by William-
son.^2

^^ Pandectes frangaises. Nouveau repertoire de doctrine, de legis-
lation et de jurisprudence. Paris, Pichon et Durand-Auzias, 1886-
1905. 59 V. Supplement. 1907-10. 4 v. Begun by Riviere and con-
tinued by Weiss and Frennelet.

** Merlin. Repertoire universel et raisonng de Jurisprudence. 5. ^d.
Paris, 1827-28. 18 v.

*' Merlin. Recueil alphab^tique des questions de droit. 4. ^d.
Paris, Garnery, 1827-30. 8 v.

*^ Dictionnaire pratique de droit. Paris, Dalloz, 1913-14. 2 v.
Supplement and additions, 1922, 1925, 1926, 1929.

*^ Anspach and Coutanche. Dictionary of Anglo-Belgian law. Lon-
don, Sweet and Maxwell, 1920. 181 p.

^^'Olver, Graham. A French-English dictionary of legal and com-
mercial terms. London, Stevens and sons, 1925. 170 p.

" Fernand-Laurent et Daumas, G. Dictionnaire juridique anglais-
f rangais et f rangais-anglais. Paris, Rousseau, 1927. 227 p.

"Williamson, A. A French-English dictionary of legal words and
phrases including legal commercial terms most commonly in use.
London, Stevens and sons, 1911. 135 p.

26 GUIDE TO THE LAW OF FRANCE

LEGAL EDUCATION

Educational methods are apt to be looked upon as a matter
of common knowledge by those most intimately connected
with them, i. e.^ teachers, and, unless the subject of special
investigation resulting in reports, such as those of the
Carnegie Foundation in this country, they are not likely to be
dealt with in current literature. Prior to 1928 there seems
to have been no comprehensive study of legal education in
France, and information necessarily had to be gleaned from
student guides and a few articles in periodicals, or, better,
from actual contact with French law schools and their
faculties. This lack is now covered by a critical comparison
of the teaching of law in France and in the United States
in a work by Valeur and Lambert, Uenseignemeant du droit
en France et aux Etats-Vnis,^^

Various publishers issue student guides. The best seems
to be Guide Dcdlo^'^^ which gives in convenient form the
regulations of the Paris Law School with respect to matricu-
lation, courses of study, degrees, examinations, scholarships
and prizes. Professor Berthelemy, dean of the Paris Law
School, is the author of an interesting sketch in nontechnical
language appearing in the Revue des deux Mandes (v. 36
(1926), p. 303) in which he discusses instruction, teachers,
and students, particularly in the Paris school. A very
good, short, but comprehensive study, by J. P. BuUington
of the Houston (Tex.) bar, appeared in the Texas Law
Review in 1926 under the title Legal education in France.
(v. 4, p. 461.) Meager and superficial information may
be obtained from two articles appearing in the Pennsylvania
Law Review in 1912 and 1913 — A morning ai the Pai^ Law
School and A Paris laio examination (v. 61, p. 33, v. 62,
p. 187.) And a very good but now superannuated article
on French schools of law was published in the Law Quarterly
Review (v. 6, p. 42) by Malcolm Mcllwraith in 1890. The

^^ Valeur et Lambert. L'enseignement du droit en France et aux
:]Stats-Unis. Paris, Giard, 1928 (BibUoth^ue de I'lnstitut de droit
compare de Lyon, t. 23) cxix, 393 p.

^ University de Paris. Guide DaUoz de I'etudiant en droit. Annee
scolaire 1927-'28. Paris, DaUoz, 1927. 117 p.

LEGAL EDUCATION 27

Journal of Comparative Legislation (v. 2, p. 131) published
an address. The teaching of law in France^ delivered by
Thomas Barclay before the American Bar Association in
1900. The scientific and social missions of schools of law,
with particular reference to the school at Nancy, were dealt
with by Professor Geny in an address delivered on the
occasion of the sixtieth anniversary of the reestablishment
of the Nancy Law School. This address which was subse-
quently published in pamphlet form*^^ gives an excellent
idea of the concept entertained by a large number of French
law teachers of the mission of legal education in general.

An American, having as a background, contact with the i^^
so-called better schools in this country, is likely to be sur-
prised by the size and variety of the student bodies in
French schools. One would naturally expect the school
at Paris to be the largest; but it is a distinct surprise to
find that it numbers its student body by thousands where,
with one notable exception, outstanding American schools
number theirs by hundreds and are all tending consciously
toward smaller enrollment by insisting on high quality. In
the article previously referred to. Professor Berthelemy gives
8,557 as the total enrollment in the Paris Law School dur-
ing 1925. Since then, there has been some increase. Al-
though the discrepancy between the enrollment at Paris and
in the provincial schools is great (that in the next largest,
Lyon, having been 773 in 1925, and that in the smallest
school well over 300), comparatively, student bodies seem
large.

The size of enrollment in French schools is due to aEnroii-
number of causes. Including the University of Algiers,™®"*
there are only fifteen universities in France proper having
law schools authorized to grant the degree of licence^ which
is a prerequisite to practice in French courts as advocate.
In addition, while practically all students in American
schools intend to practice, an important part of those in
French schools study law for other purposes. The article

^"^ G^ny, O. La mission scientifique et sociale des Facult4s de droit
it Theure actueUe. Comment e^e est comprise et pratique ^ Nancy.
Paris, RecneU Sirey, 1925. 35 p.

49926°— 31 ^3

28 CJUIDE TO THE LAW OF FRANCE

in the Texas Law Keview (4 Tex. L. E. 461) already re-
ferred to, gives a short description of the classes of students
in French schools.

Some knowledge of law is considered to be necessary in a
number of occupations in France and a not inconsiderable
portion of the student bodies in the various schools con-
sists of students who for one reason or another only at-
tend lectures {(mditeurs) or who are preparing for the
certificate of "capacity in law" (ca/pmAte en droit). Even
a number of those preparing for the liceTice do not intend
to engage in court practice but expect to go into one of the
allied professions such as that of notary or pleader {avone)
or to take up Government work or even to use their knowl-
edge of law as an asset in ordinary business pursuits. In
addition, inasmuch as a number of countries have modeled
their legal system on that of France, French schools, par-
ticularly the Paris Law School, draw students from juris-
dictions other than France, very much as national law
schools in the United States draw students from jurisdic-
tions other than those in which they are located.
Degrees Leaving aside the certificate of capacity in law, prepara-

tion for which requires no prior diploma, the degrees and
diplomas awarded in French law schools comprise the
licencej diplomas of advanced study {diplomes d^etudes
superieures) and the doctorate. Students who enroll for the
licence are required to have the French baccalaureate or its
equivalent. The list of degrees which take the place of the
baccalaureate for French students is too long to set forth
in detail here. The degrees and diplomas listed are, how-
ever, seemingly more than the equivalent of the bacca-
laureate. Foreign students who do not have the French
baccalaureate are in principle entitled to enroll, provided
they have completed studies which permit them to under-
take advanced work in the universities of their own coun-
tries. The ministry of public education publishes annually
a list of foreign degrees, diplomas or certificates which will
be recognized as permitting their holders to pursue ad-
vanced work. The course of study in the law schools
normally covers three years, examinations being given an-
nually. Its content is governed by a decree of August 2,

LEGAL EDUCATION 29

1922, and practically all the work is compulsory. Also, the
courses are somewhat broader in their scope than those
given in American schools. In addition to subjects which
normally form a part of legal cmricmLa such as constitu-
tional law, civil law, criminal law, commercial law and
procedure, the course of study in French universities includes
Roman law, legal history, and financial legislation as re-
quired subjects, and fiscal and industrial legislation, among
others, as optional subjects, as well as two years of
political economy.

Diplomas for advanced studies are given in four different
lines of endeavor — one in Roman law and legal history, one
in private law, one in public law, and one in political econ-
omy. The licence is a prerequisite. The doctorate is con-
ferred on students who have published a printed thesis
which has been found worthy by an examining committee.
A candidate for the doctor's degree must also have obtained
two diplomas for advanced study. The reputation of the doc-
torate in law was materially compromised by the military
law of 1889 which excused its holders from military service.
But the abolition of this exemption, in decreasing the num-
ber of applicants, increased the standards required, with
the result that doctor's theses form a valuable part of
French legal literature, often constituting the only literature
on a given point. Reference should again be made at this
point to Professor Capitant's little book on the preparation
of the doctor's thesis.^^

It would of course be presumptuous for an outsider toPacuities
attempt to give an estimate of the relative standing of the
different schools. Due to its location in the political and
cultural center of France, that at Paris is naturally able
to draw the largest student body, and, in addition, the great-
est number of outstanding legal educators. But no single
school has a monopoly of the best legal talent. Hence it
should occasion no surprise to find that eminent scholars
are located among the schools in the provinces. To men-
tion only a few examples, Bordeaux can boast of the late

^ Capitant, H. Comment U f ant f aire sa th^se de doctorat en droit.
2. ^d. Paris, Dalloz, 1928. 87 p.

so GUIDE TO THE LAW OP STANCE

Prof^^or Duguit aad Prolei^or B<m]iecas6; Lyon of Pro-
fessors Lambert, Pic, and Josserand; Montpellier of the late
Professor CharnKMit; Grenoble of Prof^sor Cuche; Toulous©
of the late Profe^or Hauriou ; and Nancy of Professor Geny.
Aubry and Eau were at Strasbourg when they first produced
their classical work on the Civil code.

In connection with the eminence of the names of mem-
bers of various law faculties, attention should be caUed here
to the fact that law teachers have contributed a preponder-
ant part to the legal literature of France since the promul-
gation of the Napoleonic codes. Mention has already been
made of Aubry and Kau. Later works on civil law are
connected with the names of Demolombe, Beudant, Planiol,
Eipert, Baudry-Lacantinerie, Colin, Capitant, and Demo-
gue, all of whom have b^n or still are prominent law
teachers. In the field of commercial law the outstanding
treatises are the works of Thaller and Percerou and Lyon-
Caen and Renault ; in the field of public law the prominent
names include Professors Duguit, Hauriou, Berthelemy,
Jeze, Bonnard, and Appleton; and in criminal law, a sub-
ject which has been but little dealt with by American and
English legal educators, the best literature is also the work
of members of law faculties.

While a few of the smaller schools call on prominent
members of the bar to supplement the regular teaching
staff, full-time professors are the rule and part-time teachers
the exception. Professors, however, are frequently called
upon for legal opinions.
Method oi To the American who has come to accept the case method
as tiiie only method for legal instruction the lecture method
may seem somewhat of an anachronism. Supplemented by
conferences, consisting of informal discussions, it is, how-
ever, the mode employed generally in French as in other
Ikiropean law schools.

One of the results of the lecture system has been the pub-
lication of notes and small texts as aids or even cram books.
While students are always advised to depend on lectures as
superior to books, in later years there seems to have been
a tendency on the part of teachers to cooperate with legal
publishers in preparing small texts. These texts, while not

Instruction

LEGAL EDUCATION 31

to be confused with such superior works as the scholarly
elementary treatises of Professors Planiol and Kipert and
Colin and Capitant in the field of civil law or the more pre-
tentious manuals in commercial and criminal law, such as
those of Professors Thaller and Percerou or Garraud, give
important summaries and may be of value if one desires
only a superficial knowledge of various parts of the law.
The best seem to be those published by the houses of
Dalloz^^ and Sirey.^^

The American case method has received some attention on
the part of French teachers. Several years ago, with our
method in mind. Professors Lambert and Capitant, with
the collaboration of a number of institictors, compiled a
small collection of legal problems which was published
under the title Especes choisies.^^ An excellent exposition
of the method was published in the Revue intemationaXe
(Tenseignerwent in 1920 (p. 160), under the title Le systeme
du " m56," by Pierre LepauUe, who, while not contending

^ Petits precis DaUoz. Paris, DaUoz. The coUection, the parts of
which are revised from ttme to time, includes: Droit administratif
par L. Rolland, 1 v. ; Droit constitutionnel par A. Bonde, 1 v. ; Droit
civil, 3 V. ; Droit commercial par L. Lacour, 1 v. ; Droit criminel par
P. Cuche, 1 V. ; Droit maritime par L. Lacour, 1 v. ; Droit romain par
P. Oollinet and A. Giffard, 2 v. ; Economie politique par P. Reboud,
2 v.; Histoire du droit par A. Bonde; Legislation industrielle par
H. Capitant and P. Cuche; Procedure civile et commerciale par
P. Cuche; and Voies d'ex^cution par P. Cuche. The last four 1 v.
each.

'*La licence en droit. Precis ^l^mentaire. Paris, Recueil Sirey.
The collection comprises : Droit civil par Joseph H4mard, v. 1, 1928 ;
V. 2, 1st and 2d parts, 1929; Droit administratif par Maurice Hauriou,
1925, 521 p. ; Droit constitutionnel par Maurice Hauriou, 1925, 318 p. ;
Droit administratif par Roger Bonnard, 1926, 555 p. ; Droit p^nal et
de procedure penale, par A. Roux, 1925, 425 p. ; Legislation industrielle
par Georges Scelle, 1927, 362 p.; D'Economie Politique par H. H.
Truchy, 2 v., 1927 ; Procedure civile par Ch. C^zar-Bru, 1927, 510 p. ;
Voies d'ex^cution, T ed. par Louis Josserand, 1925, 406 p.; Droit
international prive par J. P. Niboyet, 1928, 361 p. ; Droit romain par
Ernest Perrot, 1927, 468 p.; Droit romain (Notes de cours) : Les obli-
gations, 1926, 301 p. ; Droit pubUc par Roger Bonnard, 1925, 376 p.

** Capitant et Lambert. Espdces choisies emprunt^es a la juris-
prudence, publiees par un groupe de professeurs des Facultes de
droit. Paris, Dalloz, 1924. 2 p. 1., ii, xix, 301 p.

32 GUIDE TO THE LAW OF FRANCE

that it be adopted in France to replace the lecture method,
urged that it .be considered by French teachers for its value
in connection with the teaching of a system of jurisprudence
not based on the common law.

Befor'e closing the discussion on legal education attention
should be called to a comparatively recent work criticizing
the methods of French law schools, Uenseignement du droit
et la formation du dtoyen^^ published by Professor Aron,
in charge of the course of study at the law faculty of the
University of Caen. A number of points in legal educa-
tion were also critically dealt with in an article, Facndtes et
Scoles de droit^ which was published by Professor Cuche,
of Grenoble, in the Revue intemationale de Venseignement
for 1918 (p. 355). Attention might also be called here to a
recent publication by Professor Bonnecase, Qu^ est ce qu^
une faculte de droit, ^^^ In addition, mention should be made
of a recent work of a popular nature, dealing with students,
by Professor Mestre, of Paris.^^^

PHILOSOPHY OF LAW

Philosophy of law, as the term (philosophie du droit) is
used by French writers, has as its object a search for the
underlying foundations and purposes of law. Taking as
their background the entire field of the intellectual move-
ment in Europe during the course of the last century, com-
prised within the general scope of the terms "theoretical
jurisprudence," ^' rechtsphUosophie^'^ and '^philosophie du
droit^'^ a number of writers have undertaken to classify
jurists according to their views of the nature of law or
methods of approach to the science of law. Lord Bryce
in his Studies in history and pirisprudence ^^ tells us that
four methods are commonly spoken of as employed in legal
science, namely: the metaphysical or a priori method, the

*^Aron, G. L'Enseignement du droit et la formation du citoyen.
Paris, Boccard, 1920. 127 p.

^* Bonnecase, J. Qu' est ce qu' une faculty de droit. Paris, Sirey,
1929. 202 p.

*^^ Mestre, A. Etudes et audiants. Paris, DaUoz, 1928. 160 p.

^ Bryce, J. Studies in history and jurisprudence. New York, Lon-
don, Oxford University Press, 1901. 2 v.

PHILOSOPHY OF LAW 33

analytical method, the historical method, and the compara-
tive method. Dean Pound in a series of articles in the
Harvard Law Keview^^ says that until recently it was
possible to divide jurists into three principal groups which
he calls the philosophical school, the historical school, and
the analytical school. To these he would add a " rising and
still formative school " which " may be styled the sociological
school."

Of the three groups first named by Dean Pound, the
philosophical school, which has as its characteristic the
study of the philosophical and ethical bases of law, legal
systems and doctrines, is the oldest. Having its origin in
the metaphysical speculations of Greek philosophers, the
philosophical method constituted the principal method of
approach during the seventeenth and eighteenth centuries.
Borrowing from antiquity a concept of ius naturale^ the phi-
losophers of this latter period appealed to natural law or
the law of nature for their guiding principles in deter-
mining the ethical foundations of law. In the hands of
the seventeenth and eighteenth century philosophers, how-
ever, natural law was divorced from theology. Instead of
having a theological foundation its basis became a rational
one. Grotius (1583-1645), to whom belongs the honor of
reviving the concept of natural law and founding the mod-
ern philosophical method of jurisprudence, while not com-
pletely separating natural law from the will of God, in the
first book of De jure belli et pacis describes it as supplying
the rules which are suggested by reason and from which
we necessarily determine whether particular action is just
or unjust. The philosophical method of the first half of
the last century was primarily metaphysical. Its adherents,
usually using the philosophy of Kant, the outstanding
founder of this school, as their starting point, investigated
the abstract ideas of right and law in their relation to

^ Scope and purpose of sociological jurisprudence. 24 Harvard Law
Review 591; 25 Harvard Law Review 140, 489; The progress of the
law: Analytical jurisprudence, 1914-1927. 41 Harvard Law Review
174. In this last article Dean Pound devotes considerable space to
French legal philosophy, particularly with reference to L6vy-Ullmann's
La definition du droit {infra^ p. 47, note 12),

34 GUIDE TO THE I/AW OF FRANCE

morality, freedom, and the human will. The metaphysical
abstractions of this branch of the philosophical school fell
an easy prey to its opponents and the philosophical method
for a while was in disrepute. But as pointed out by Dean
Pound in the series of articles already referred to, a re-
action has set in, especially in France, where the philo-
sophical method was never completely abandoned.

The long list of nineteenth century jurists who adopted
the philosophical method is ample evidence of its con-
tinuous importance in French thought. The list, to men-
tion only the more important names in chronological order,
includes Lerminier, whose Philosophie du droit ^^ was pub-
lished in three editions between 1831 and 1853; Jouffroy,
the author of Cours de droit naturel^^ published in five
editions between 1833 and 1876 ; Belime, whose PhUosophie
du droit ^^ was published in four editions between 1843 and
1881; Oudot, whose works, Premiers essais de philosophie
du droit ^® and Conscience et science du devoir ^^ were pub-
lished in 1846 and 1856 ; Franck, the author of Philosophie
du droit ecclesiastique^^ published in two editions, and of
Philosophie du droit civil^^^ published in 1886; Eenouvier,
whose Science de la morale '^^ appeared in first and second
editions in 1869 and 1908 ; Boistel, the author of two works,
the first, Cours elementaire de droit naturel^^'^ published in

'^ Lerminier, J. Pliilosophie du droit. 3. ed. Paris, GuiUaumin,
1853. 535 p.

** Jouffroy, Th. Cours de droit natural. 5. 4d. Paris, Hachette,
1876. 2 V.

*" Belime, W. Philosophie du droit, ou cours dlntroduction k la
science du droit. 4. €d. Paris, Durand, 1881. 2 v.

"Oudot, J. Premiers essais de philosophie du droit et d'enseigne-
ment m^thodique des lois frangaises. Paris, Joubert, 1846. 415 p.

•'Oudot, J. Conscience et science du devoir, introduction k une
explication nouvelle du Code Napoleon. Paris, Durand, 1856. 2 v.

*® Franck, A. Philosophie du droit eccl4siastique. Paris, Germer-
BaiUi^re, 1864. 192 p.

"* Franck, A. Philosophie du droit civil. Paris, Alcan, 1886.
295 p.

^** Renouvier. Science de la morale. Nouv. 4d. Paris, Alcan, 1908.
2 V.

'^Boistel, A. Cours Elementaire de droit naturel ou de philosophie
du droit, suivant les prinelpes de Rosmini. Paris, Thorin, 1869.
461 p.

PHILOSOPHY OF LAW 35

1869, and the second, Cows cDe philosopMe du droit^^ in
1899 ; Fouillee, whose most important work, VIdee Tnodeme
du droit ^^ was first published in 1878; Kothe, the author
of a philosophical treatise in six volumes, which was pub-
lished under the title Traite de droit naturel theorique et
applique ^* between 1885 and 1912 ; Lucien Brun, author of
VIntroduction d Vetude du droit^^ published in a second
edition in 1887; Beaussire, author of Les principes du
droit ^^^ published in 1888 ; de Vareilles-Sommieres, who pub-
lished his Les principes fondmaerhtcmx du d^oit'^'^ in 1889,
and Beudant, whose important work, Le droit individuel et
VEtat^^ first appeared in 1891.

There was, however, during the course of the century an
evolution in method of approach. The philosophy of the,
early period was impregnated with the idea that there
exists over and above positive law an ideal system of law
consisting of immutable principles which are discoverable
through reason and to which positive law should conform.
The authors of the Civil code were under the influence of
the then prevailing transcendentalism when they proposed
to inscribe at the head of the code the formula : " There is
an universal law, immutable, the source of all positive
laws." The works of the metaphysicians of the first half of
the century were imbued with the same thought. Professor
Jouflfroy in his popular Cov/rs de droit naturel speaks of
natural law as haviug as its subject the rules of human con-
duct under all possible circumstances. Professor Oudot in
his Premiers essads defined natural law as the collection of
rules which it is desirable to see immediately transformed

"Boistel, A. Cours de phUosophie du droit. Paris, Fontemoing,
1899. 2v.

"FouiU^e, A. L*id^e moderne du droit. Nouv. M. Paris, Hach-
ette, 1923. 408 p.

'*Rothe, T. Traits de droit naturel theorique et appliqu4. Paris,
Larose et Forcel, 1885-1912. 6 v.

"Brun, Lucien. Introduction k I'^tude du droit. 2. 4d. Paris,
Lecoffre, 1887. 400 p.

" Beaussire, E. Les principes du droit. Paris, Alcan, 1888. 427 p.

"La Brotie de Vareilles-Sommieres, G. Les principes fondamen-
taux du droit. Paris, Pichon, Guillaumin, 1889. 491 p.
' " Beudant, C. Le droit individuel et VMat Introduction a I'^tude
^u droit 3. M, Paris, Rousseau, 1920. 290 p.

36 GUIDE TO THE LAW OF FRANCE

into positive laws. Even the more recent works of Professor
Franck and de Vareilles-Sommieres were inspired by the
earlier concept of natural law.

But during the latter part of the nineteenth century the
earlier metaphysical conception gave way, particularly in
the hands of such writers as Fouillee, Boistel, and Beudant,
to a concept of ideal justice supplying the principles which
should direct man in his effort to perfect the social order.
Opinions, however, differed as to the content which should
be given this ideal.

The prevailing nineteenth century content as conceived
by the natural law or philosophical school (which in France
seem to be synonymous) was individualistic. Respect for
human personality has always been important in French
thought. Its principles were contained in the Declaration
of the rights of man, and individual liberty also formed
the background of the codes of the Napoleonic era. The
abstractions of the metaphysicians, dealing as they did
with the relations of right and law to morality and free-
dom of the human will, naturally led with some to definition
in terms of the individual and a conception of fundamental
subjective rights which are indispensable if man is to live
in a manner that conforms to his nature and which, for
that reason, should not be encroached upon. Lerminier, Ke-
nouvier, Franck, and Boistel dealt with a natural law de-
fined in terms of respect for the individual. Beudant's Le
droit indvvidv)el et VEtat was written as a protest against
the ever-growing encroachment of society on the individual.
But not all of the French law-of -nature philosophers of
the last century were necessarily individualists. Belime,
Oudot, and Beaussire seem to have found duty rather than
freedom to be the basis oi law. Professor de Yareilles-Som-
mieres along with Senator Lucien Brun looked upon natural
law, derived from divine law, as supplying the principles
underlying the maintenance of social order. Professor
Fouillee, whose LHdee rrwdeme du droit is translated in part
in Modern French legal philosojjJiy^^^ v. 7 of the Modei^7i

"Modern French legal philosophy, by A. Fouillee, J. Charmont, L.
Duguit, and R. Demogue. Tr. by Mrs, Franklin W. Scott and Joseph
P. Chamberlain. Boston, The Boston book co., 1916. Ixvi, 578 p.

PHILOSOPHY OF LAW 37

legal philosophy 5m^5, identifies justice with liberty, but
at the same time, under the influence of the prevailing posi-
tivist sociological doctrine, he assigns to law the dual pur-
pose of promoting the interests of society and protecting
the individual.

In France, as elsewhere on the Continent and in England,
the early part of the nineteenth century saw a reaction
against the traditional philosophical method. This reaction
came from three well-defined groups which are usually des-
ignated under the terms the " historical school," the " an-
alytical school," including the social-utilitarian school, and
the " positivist-sociological school."

The historical school saw in law a product of time and
unconscious evolution. Law is not made, but is the result
of growth. German in origin, its chief connection with
France as a school is Savigny's warning, in his celebrated
Of the vocation of our age for legislation amjA jwrisprv^
dence^^ against hasty codification along the lines of the
French codes. Although the historical school has come in
for considerable discussion in various works of French
writers, usually critical, no outstanding French jurist can
be strictly said to be included among its adherents. An
article in the Livre dai centencdre^'^ Le Code civil et la
iivethode Kistorique^ by Professor Saleilles, in which that
learned and versatile writer attempts to show that, contrary
to the predictions of Savigny, codification in France has not
impeded the historical evolution of French law, might serve
to identify him with the historical method, but Professor
Saleilles, in his studies in criminology and comparative law,
showed himself to be too catholic in his interests to be
strictly identified with any school.

Anglo-American lawyers usually think of Austin in con-
nection with the analytical method. If the analytical method
is defined so as to include only an examination of existing
legal data with a view to their classification and an explana-

*" Savigny. Of the vocation of our age for legislation and juris-
prudence, from the German by Abraham Hay ward (from the 2d, 1828,
ed.). London, Littlewood, 1831. 192 p.

^^ Le Code civil, 1804r-1904 ; livre du centenaire, pub. par la Socii§t4
d'etudes legislatives. Paris, Rousseau, 1904. 2 v.

38 GUIDE TO THE LAW OF FRANCE

tion of their connotation and interrelation, one would
naturally expect to find it employed more or less in France
in treatises devoted to positive law as contained in the differ-
ent codes. In this sense it is the method of Aubry and Eau
in their classical work on the Civil code ; ®^ instead of follow-
ing the order .of the Code, the authors discuss the subject in
monographic form scientifically classified. Professor Capi-
tant, professor of civil law at the University of Paris, adopts
this method, with a philosophical background, however, in
his comparatively recent and extremely useful introductory
work on civil law,^^ in which he discusses such subjects as
subjective rights and their division, persons capable of en-
joying rights, property, the acquisition and lo^ of rights
and proof.

But the analytical jurist also looks upon law as some-
thing which is consciously made. Bentham, who is usually
referred to as the founder of the analytical method, repre-
sented the English reaction against the metaphysical ab-
stractions of continental philosophy and against the then
current self-satisfaction of the English lawyer as typified
by Blackstone's Commerdaries, Not content with classifi-
cation for its own sake, Bentham made the theory that law
is a conscious creation serve as the basis for a doctrine that
it should be made to promote a social utilitarian purpose.
His utilitarianism, which was more a theory of legislation
than a legal philosophy, has always had a certain attraction
for French scholars, both becau^ of French influence on
Bentham during his youth and because of the fact that the
utilitarian doctrine was followed in Engand by a literal
movement comparable with that which resulted on the Con-
tinent in the revolutionary movement of 1848. In his excel-
lent study of Bentham and the evolution of the utilitarian
doctoine Professor Halevy describes the parallel movement
in the following language: "The philosophy of the rights
of man led to the Revolution of 1848 on the Continent;

^ Aubry et Rau. Cours de droit civil f rangais, d'apr^s la mfithode
de Zaehariae. 5. 4d. Paris, Marciial et Godde, 1897-1^52. 12 v.
; ^Capitant, H. Introduction h. r^tude du droit civil. Notions
g&i^rales. 4. ^ Paris, Pedone, 1922. 455 p.

PHILOSOPHY OF liAW 39

utilitarianism in England, at about the same time, led to
the triumph of the Manchester doctrine of free trade."®*
Nevertheless, the utilitarian doctrine remained essentially
English in its subsequent development, as, essentially, it
was English in origin.

Leaving aside the royalistic and theoretic doctrines of de
Bonald, de Maistre, and Lamennais, which were political
rather than juristic, the reaction in France against the
classical philosophical method came from the positivist-
sociological school which was founded by Auguste Comte
and represented the predominant idealistic element in French
thought during the course of the last century. Due to their
importance with respect to the realistic movement in France
the doctrines of Comte ^^ deserve more than passing notice.

According to Comte, every science passes through three
stages. In the fii'st, phenomena are explained as resulting
from the supernatural ; in the second, the supernatural gives
way to a metaphysical explanation ; and in the third, their
explanation is founded on observation with the formulation
of rules or laws based upon experimentation and induction.
Carrying his theory a step further, he concluded that juridi-
cal and political thought had already passed through the
second stage and that the time had come to adopt a truly
scientific method based upon an experimental study of social
facts. Rejecting the traditions of the classical school along
with natural law individualism, he says that positivism
only recognizes duties since its objective, being social, can
not be reconciled with a concept of right based on the
claim of the individual. As a result, law, instead of being
limited by a priori necessary respect for the individual, is a
means of intervention on the part of society in its own in-
terest, and for its own pi'otection. Time can not be taken
to refer to all the nineteenth century French philosophers
who were influenced more or less by the sociological methods
of the Comtian positivist school. A complete list would
include names of philosophers whose methods range all the

"Hal^vy, E. La formation du radicaUsme philosophique. Paris,
Alcan, 1901-1904. 3 v. The quotation is from v. 1, p. 37.

*" Comte, A. Cours de philosophie positive. 2. ^. Paris, Baill^re
et fils, 1864. 6 v.

40 GUIDE TO THE LAW OF FRANCE

way from out and out positivism to. rationalism as well as
a number of sociologists and economists whose works do
not fall within the scope of this discussion. The more im-
portant names include Littre, Richard, Courcelle-Seneuil,
Tanon, and Durkheim.

Littre's Application de la philosophie positive au gawveme-
TTbent des societes^^ published in 1849, like Comte's Cows de
philosophie positive^ is devoted to a scientific study of the
organization of humanity. Also, like Comte, he rejects in-
dividualism as unscientific and even goes so far as to express
a willingness to confide the direction of society to the more
intelligent class. Gaston Richard's Uorigine de Videe du
droit ^'^ published in 1892 as a doctor's thesis, is an ingenious
but not always convincing study of intervention by society
in its own interests. Calling to his aid resources drawn
from a scientific study of comparative law, the learned writer
bases social intervention through law on the interest of
society in its own preservation from the consequences of
conflicts between individual activities, appetites, and de-
sires. It is the intervention of society to preserve social
order which has given rise to such institutions as the family,
marriage, property, and contract. A right instead of pre-
ceding a wrong is created by society as a means of preserv-
ing the social order. Professor Courcelle-Seneuil in his two
more important works. Etudes sur la science sodale ^^ and
Preparation a Vetvde du droit^'^ seems to have been inspired
in part by Bentham's utilitarianism, Spencer's individual-
ism, and Comte's positivism. Utilitarian and at the same
time individualistic, even to a certain extent idealistic, he
also derives his concept of law from a study of the social
sciences. Rejecting the idealistic concept of justice of the

^® Littre, E. AppUcation de la philosophie positive au gouvernement
des soci4t4s. Paris, Ladrange, 1849. vii, 159 p.

" Richard, G. Essai sur I'origine de I'idee du droit. Paris, Thorin,
1892. xxiii, 263 p.

''Courcelle-Seneuil, J. G. ifitudes sur la science sociale. Paris,
Guillaumin, 1862. 492 p.

^ CourceUe-Seneuil, J. G. Preparation a Tetude du droit, §tude des
principes. Paris, Guillaumin, 1887. xi, 489 p.

PHILOSOPHY OF LAW 41

classical school, he finds law to be a collection of rules
founded on utility and having their source in the state.
Tanon, who was influenced both by historical and positivist
doctrines, in his study of law and the evolution of the social
conscience,^^ assigned as the purpose of law the designation
of obligatory relations between men which are imposed by
the ideas of justice existing in the common conscience of a
social group at a given moment.

Standing alone, the sociological school in supplying a
scientific approach to the problems of legal philosophy
would be important enough as an historical factor in the
evolution of French juristic thought. But a greater impor-
tance lies in the fact that it contributed the doctrine of
social solidarity to the cross currents of present day French
legal thought. Professor Durkheim's work. Division du
travail^^ is of particular importance in connection with the
doctrine, not only because he is one of the precursors of the
modern movement but also because his ideas were freely
drawn from by the present outstanding French realist. Pro-
fessor Duguit. An advocate, primarily as a sociologist and
moralist and not as a lawyer, of the integration of social
science in the general system of natural sciences. Professor
Durkheim found social solidarity to be the outstanding vital
social phenomenon and the only basis for law and morality.
In considering the forces which bring men together into
a society Professor Durkheim names two contributing
causes — solidarity through similarity of desires and interests,
which he calls mechanical solidarity, and solidarity through
independent functions. In the beginning, in primitive so-
ciety, men were drawn together through the similarity of
their needs, desires, and beliefs, but as society advances,
their desires and needs, as well as aptitudes, become more
and more diverse. As a result men are held together
through the facility for exchange of services to satisfy
their individual desires and needs. This cohesion through

** Tanon, L. L'^volution du droit et la conscience sociale. 3. ^d.
Paris, Alcan, 1911. 166 p.

" Durkheim, E. De la division du travail social. Paris, 1893. 471
p. 5. M. Paris, Alcan, 1925. 416 p.

42 GUIDE TO THE LAW OF FRANCE

satisfaction of differing needs he calls solidarity through
division of labor. It is worthy of remark that the bond
of union or social interdependence through independent
functions instead of destroying the individual is assumed
to bring about his development through increased activity
as a means of satisfying his desires. Michel, in his impor-
tant work, Videe de VEJtat^^^ develops the same idea from
another point of view when he says that true individualism
does not isolate the individual but conceives of him as a
member of society developing along with the group.

The solidarist doctrine has received extensive discussion
at the hands of French philosophers, sociologists, and econ-
omists. The more important works not yet mentioned in-
clude Gide's LHdee de solidarite^^ and Bougies' Le soli-
darisTiie,^^ Mention shodld also be made of Solidarite^^
by Leon Bourgeois, who as a political leader made the doc-
trine the basis of a program of a political party. In the
hands of others it became the basis of a legal philosophy,
sometimes as a social fact to be accepted, and to which law
must conform, at others as an ideal which law should
promote.

The present century began with a number of legal prob-
lems to be solved. The centenary of the Civil code
brought to the front the question of revision. As might be
expected, a century-old code, little changed by legislation,
must, in order to apply to changed conditions, be either
revised or be given a new content through interpretation.
Thus arose an important question of method of interpr^a-
tion. Also, during the hundred years since the codifica-
tion of the Napoleonic era, changed social and economic

"Michel, H. L'id^ de Tfitat; essai critique sur I'histoire des
th^ries w>ciales et politiqiMS en France d^uis la revolution. 3. M.,
rev. Paris, Hachette, 18^. 659 p.

"Glde, Ch. L'id^e de solidarity en tant que programme ^ono-
mique (Extrait Revue Internationale de sociologie). Paris, Giard et
Brifere, 1893. 16 p.

•* Bougie, C. Le solidarisme. 2. M. Paris, Giard, 1924. 208 p.

* Bourgeois, L. SoUdarite. (Solidarity, Justice. Libert^. L'id^e
de solidarity et ses consequences sociates.) 10. ed. Paris, Colin, 1925.
294 p.

PHILOSOPHY OF lAW 43

conditions raised important questions of the direction to
be followed in social legislation, in which France had lag-
ged behind her more advanced neighbors. Separation of
church and state also raised important questions. It is not
surprising, therefore, in view of these problems, to find
French scholars in increasing numbers devoting their at-
tention to the foundations and purposes of law. The more
important works of the pre-war period are those of Duguit,
Demogue, Geny, and Charmont.

Inasmuch as his theories are the ones around which most
of the discussions in leading French philosophical works
center, it might be well first to turn our attention to Profes-
sor Duguit. Professor of constitutional law at the Uni-
versity of Bordeaux and a prolific writer, he has produced
a number of works on public law in its philosophical as-
pects. The most comprehensive exposition of his doctrines
is contained in his Z'^^oi^, le droit objectif et la loi positive
which forms the first volume of Etudes de droit jmhlic.^^
They were further elaborated in a series of lectures which
were published under the title Le droit social^ le droit in-
dividuel et les transformations de VEtat.^'^ But all of his
writing has a philosophical background, and if one were to
give a complete list of his philosophical works it would be
necessary to include his Manuel de droit constitutionnel^^
Traite de droit constitutionnel^^ Les transformations gene-
redes du droit prive^ and Les transformations du^ droit pvh-
lic^ translated into English by Harold and Frida Laski

•• Duguit, L. Jfitudes de droit pubUc. I. L'jfitat, le droit objectif et
la loi positive. II. L':6tat, les gouvemants et les agents. Paris,
Fontemoing, 1901-02. 2 v.

"^Duguit, L. Le droit social et le droit individuel et les transfor-
mations de r^tat. 3. 4d. Paris, Alcan, 1922. 160 p.

"Duguit, L. Manuel de droit constitutionnel. 4. 6d. Paris, de
Boecard, 1923. 605 p.

"Duguit, L. Traits de droit constitutionnel. Paris, de Boecard.
1921-^. 5v.

* Duguit, L. Les transformations g^n^rales du droit priv6 depuis
le Code Napol4on. 2. 6d. Paris, Alcan, 1920. 2 p. 1., xiv, 206 p.

* Duguit, L. Les transformations du droit public. Paris, Ck)Un,
1921. 285 p. Reprint

49926**— 31 4

44 GUIDE TO THE LAW OF FRANCE

under the title Law in the modem staie,^ The last two works
give an interesting exposition of the changing views of the
concept of law, from the individualistic notions of the time of
the compilation of the codes to the social ideas of present
times. Duguit is also the author of a treatise, The law and
the state^ which appeared as a whole number of the Harvard
Law Review (v. 31, p. 1) and portions of his VEtat^ le
droit ohjectif et la loi positif have been translated and
appear in Modern French legal philosophy {supra). His
objective theory of law is developed in a series of articles in
the Columbia Law Eeview (v. 20, p. 817; v. 21, pp. 17, 126,
and 242).

Rejecting the classical concept of subjective individual
rights as being based on a pure hypothesis and metaphysical
affirmation. Professor Duguit adopts what he calls an objec-
tive theory of law. Like Durkheim he bases social conduct
on solidarity, but unlike many other solidarists he refuses
to give solidarity a moral value. His philosophy might be
summed up as having as its basis a duty to do nothing to
diminish social solidarity; to do everything possible for
its pi'omotion. At times he seems to be making solidarity
an ideal which law should promote, but he aligns himself
with the realists when he says that his rule of conduct for
man to follow is not a rule of morals but a rule of law.
Man should cooperate to promote social solidarity not be-
cause such cooperation is good in itself but because such
cooperation has a social value. As a realist, however, he is
not a believei" in the omnipotence of the state. On the con-
trary, he considers the state like the individual to be bound
by the limits placed on it by his doctrine of social inter-
dependence. In thus limiting the state, Duguit, in spite
of his profession of realism, sets up an external standard
which an ideal system is supposed to produce. To quote
from Professor Borchard {Governmental responsihilUy in
tort VI {The State subject to law)^ 36 Yale Law Journal,
p. 1039 at p. 1091; see also Governmental resfOnsihUity in

® Duguit, L. Law in the medem State, tr. by Frida and Harold
Laski. New York, B. W. Huebscli, 1919. 247 p^

PHILOSOPHY OF LAW 45

tort V (The State can not he hovmd hy law)^ 36 Yale Law
Journal, p. 757 at p. 763): "'Objective law,' 'social soli-
darity ' . . . like ' natural law ' . . . are value standards
which embody an implicit dogmatism transcending experi-
ence and expressing both an ideal, and the quest for, and
supposed need of, perfection and the absolute." In addition
to the exposition and criticism of Duguit's theories in the
article just referred to there are several other expositions
and interpretations, in English. These include Mathews',
A recent development in folitical theory (24 Political Sci-
ence Quarterly, 284), Elliott's The metaphysics of Duguifs
pragmatic conception of law (37 Political Science Quar-
terly, 639), Brown's The jnHsprudence of M. Dugmt (32
Law Quarterly Review, 168), and Coker's Pluralistic
theories in Merriam and Barnes' A history of political
theories^ chapter 3.

The reputation of Professor Demogue, formerly profes-
sor at Lille and now a member of the law faculty of the
University of Paris, lies primarily in the field of civil law,
particularly obligations. His important work in the field
of legal philosophy is his Les notions fondamentcdes dm droit
privSy^ which was written to serve as an introduction to a
study of obligations. The first part, which is devoted to a
study of fundamental notions of law, appears in Modern
French legal philosophy {supra^ P- 3)* In accepting a no-
tion of natural law, providing it can be divorced from its
eighteenth century abstractions and treated as something
with changing content to be striven for, he aligns himself
with the idealists. But his ideal is of uncertain quality.
Neither an individualist nor a solidarist, he seems to be a
somewhat detached advocate of reconciliation of conflicting
criteria which have their origin in differing feelings and
tastes as to the importance of needs which law should secure.
Law should have as its purpose " the satisfaction of human
tastes; the realization of varied conceptions of life."

* Demogue, R. Les notions f ondamentales du droit prive ; essai
critique, pour seryir d'introduction ^ I'etude des obligations. Paris,
Rousseau, 1911. 681 p.

46 GUIDE TO THE LAW OF FRANCE

In his Methode dHnterpretctition en droit prive fositif^
which appears in part in Sdemce of legal method^ v. 9 of
the Modem legal pMlosopky series^ Professor Geny, of
the University of Nancy, was primarily interested in de-
veloping a method of interpretation of the Civil code.
Protesting against the traditional method of attempting
through logical deductions to make the written law all suf-
ficient, he advocated that where the written law is not ex-
pressly applicable to a given situation the interpreters have
recourse to the dictates of reason, to sciences auxiliary to
the law and to facts derived from an observation of society,
in order to supplement its deficiencies. In a more recent
and more extensive work. Science et techniqioe en droit prive
positif^^ he elaborates his earlier ideas of the fundamental
notions of law. After discussing at length current philo-
sophical thought, as well as that of the nineteenth century,
he aligns himself with the school of natural law and rejects
the realism of Professor Duguit.

Professor Qiarmont, of Montpellier, in his excellent piece
of work, La renaissanfwe du droit natv/rel^ which is trans-
lated in part in Modem French legal pMlosophy {supra) ^
turned his attention to the philosophical methods employed,
particularly in France, down to the present time. After
reviewing the different schools and discussing the revival
of natural law or the philosophical method, he comes to the
conclusion that it is impossible to justify a notion of law
deprived of its moral content. But his natural law, like
that of Boistel and Beudant, is something different from
that of the early part of the nineteenth century. Having
lost its absolute character it has a variable content. Recog-

^ G^ny, F. M6thode dlnterpr^tation et sources en droit priv6 positif .
Essai critique. 2. 4d. rev. et mise au courant. Paris, Pichon et
Durand-Auzias, 1919. 2 v.

•Science of legal method. Select essays by various authors. Tr.
by Ernest Bruncken and Layton B. Register. Boston, Boston book
CO., 1917. 593 p.

'G^ny, F. Science et technique en droit priv6 positif; nouvelle
contribution k la critique de la methode juridique. Paris, Recueil
Sirey, 1914-24. 4 v.

'Charmont, J. La renaissance du droit naturel. 2. ^d. Paris,
Duchemin, 1927. 222 p.

PHILOSOPHY OF LAW 47

nizing the idea of evolution and utility it takes into account
both the individual and society, thus tending to bring to-
gether individual conscience and the law instead of setting
them off against each other. Professor Charmont's works are
few in number, the only others of a philosophical nature being
his Le droit et Vesprit democratique? which appeared in 1908,
and Le^ tranfisformations dm droit cwil^ published in 1912.^^

In connection with Professor Charmont's works attention
shoTild be called to a somewhat similar study, La crise actuelle
de la philosophie du droit^^ by Professor Ehrhardt, of the
Paris faculty of theology. Reference should also be made
to an article by Professor Saleilles, Ecole historique et droit
naturelj in the first volume of the Revue trimestrielle (1902,
p. 80), in which the learned author discusses the revival
of natural law.

In his important Elements d^introduction genercde^^^ writ-
ten in 1917, Professor Levy-Ullmann, then of the Uni-
versity of Lille, after reviewing the different definitions of
law which have been current in France, says that it is a
historical fact that after passing through a crisis a nation
reexamines its notion of law. Judging from the philosophi-
cal works and articles in periodicals which have been pub-
lished in France during the last few years, the statement of
Professor Levy-Ullmann has been substantiated. It is un-
doubtedly too early to predict what definite form the phi-
losophy or philosophies arising out of these discussions will
take. There are, however, certain defined characteristics.
Most of the works examine the philosophies of the past,
taking stock of the ground already covered. Ultimately
discussions center on the realism of Professor Duguit, which
many writers find to be insufficient. Like Professor Char-
mont, they refuse to divorce law from its moral content but

•Charmont, J. Le droit et Tesprit d^mocratique. Paris, Masson;
MontpeUier, Coulet, 1908. 243 p.

"Charmont, J. Les transformations du droit civil. Paris, OoUn,
1912. 294 p.

"Ehrhardt, E. La notion du droit et le christianisme. Introduc-
tion historique : I. La crise actuelle de la philosophie du droit. Paris,
Fischbacher, 1908. 182 p.

" L6vy-Ullmann, H. :fil6ments d'introduction g4n6rale a r^tude
des sciences juridiques. I: La definition du droit. Paris, Recueil
Sirey, 1917. 176 p.

48 GUIDE TO THE LAW OF FRANCE

set oflf against positive law a concept of natural law, not
the concept of the metaphysicians but the latter-day con-
cept of a small group of guiding principles. Perhaps these
principles could all be comprised under the heading " ideal
social justice," or, even, what we call " due process of law."

Among the recent works refusing to divorce law from
morality should be included those of Cuche, Bonnecase, and
Kenard, as well as that of Geny, already mentioned. Pro-
fessor Bonnecase, of Bordeaux, gives an excellent short study
of the notion of law during the last century in his La notion
de droit en Franoe ^^ and at the end bases natural law on a
metaphysical concept. Other important recent works by the
same author include a recent pamphlet A la recherche du
fondement du droit^^^ his Introduction a Vetude du droit^^
published in 1926, and his Science du droit et romantisme^^
dealing with the conflict of legal conceptions in France
from 1880 up to the present. Professor Cuche, of Grenoble,
in a somewhat short work. En lisant les juristes philoso-
fhes^^ lays the foundation of law on Christianity and
faith. Professor Cuche is also the author of another
work, published under the title Conferences de phUos-
Of hie de droit ^'^ dealing with the "mirage of natural law,"
the metaphysical postulates of positivism and legal personal-
ity. Professor Eenard in a series of works ^^ appearing be-

^' Bonnecase, J. La notion de droit en France an dix-neuvi^me
Steele. Contribution h I'^tude de la philosophie du droit contempo-
raine. Paris, de Boccard, 1919. 236 p.

"<* Bonnecase, J. A la recherche du fondement du droit. Paris,
Suey, 1929. 23 p.

"Bonnecase, J. Introduction a I'^tude du droit. Le probl6me du
droit devant la philosophie, la science et la morale. Paris, Recueil
Sirey, 1926. 164 p.

"Bonnecase, J. Science du droit et romantisme. Paris, Recueil
Sirey, 1928. Iv, 745 p.

"Cuche, P. En lisant les juristes philosophes. Paris, de Glgord,
1919. 122 p.

*' Cuche, P. Conferences de philosophie de droit. Paris, Dalloz,
1928. 128 p.

^* Renard, G. De droit, la justice et la volonte ; conferences d'intro-
duction philosophique ^ T^tude du droit. Paris, L. Tenin, 1924. 344 p.

Same. Le droit, la logique et le bon sens. 1925. 408 p.

Same. Le droit, I'ordre et la raison. 1927. 433 p.

Same. La valeur de la loi. Critique philosophie de la notion de la
loi. 1928. 298 p.

PHILOSOPHY OF LAW 49

tween 1924 and 1928 accepts as the basis of positive law an
" immutable natural law " consisting of a small number of
principles founded on morality. Mention should also be
made of a number of articles by Professor Le Fur ^^ of Paris
in which he advocates the application of the same notion to
international law. While the preponderance of idealism may
be recognizable, its content is not yet definable. Perhaps
Professor Cuche expresses a tendency toward conciliation of
individualism and collectivism when he says that present
changes in the notion of the basis of law tend toward an
abandonment of the negative and prohibitive individualistic
functions of classical juristic thought in favor of cooperation
toward social and individual ends.

Not all present French thought is idealistic, however.
Professor Duguit has repeated and added to his ideas in
the new edition of his Traite de droit constitutionnel^^^ in
five volumes, all of which have appeared since the war. In
the concluding pages of a little book, Le droit^ Videalisme
et Vexperience^^^ published in 1922 by Professor Davy, of
the faculty of letters of the University of Dijon, the au-
thor, after reviewing the views of Professors Duguit and
Geny, summarizes the relation of realism to idealism in
language which is well worth referring to. Respect for
personality, for justice, for promises made, are not so much
beautiful innate instincts as difficult and slow conquests
made by society in its struggle against itself. Eealism is
not a denial of idealism, but it alone is capable of furnish-
ing an experimental justification of a priori values.

"Professor Le Fur*s articles, to mention only a few, include: Le
droit naturel et le droit rationnel ou scientifique (Revue de droit
international, 1927, p. 658-698) ; Le droit naturel ou objectif s'^tfend
il aux rapports internationaux (La Revue de droit international et de
Legislation compar^e, 1925, p. 59-99) ; Philosophie du droit inter-
national (Revue general de droit International public, 1921, p.
565-603). They have been published in reprints by the periodicals
named.

'" Op, dt. p. 43, note 99, supra.

^^ Davy, G. Le droit, Tid^alisme et I'exp^rience. Paris, Alcan, 1922.
165 p.

50 GUIDE TO THE LAW OF rRANCE

COMPARATIVE LAW

In connection with the discussion of legal philosophy
some reference should be made to the study of compara-
tive law in France. Doctor Alvarez devotes a few pages
to the subject in his Une nouvelle conception des etvdes
juridiques^^^ which is translated in part in the Science of
legal method^^^ v. 9, of the Modern legal philosophi/ series.
Professors Lambert and Saleilles are among the French
writers who have taken a prominent part in developing
the comparative method. A recent work by Professor Lam-
bert, Uenseignement dw droit coTmpare^^ should be of in-
terest to Americans, as it deals with a rapprochement of
French and Anglo-American law through a study of com-
parative law. He is the author of another work, Etudes
de droit conmmin^^ translated in part in Science of legal
methods {supra). Professor Saleilles was the author of a
number of studies in German law which will be referred
to in the chapter on the Civil code. In 1900 he contributed
an important study of methods of comparative law to the
International Congress of Comparative Law which was
published in the Bulletin de la Societe de legislation com^
paree of the same year. It should be remarked here that
this bulletin, the organ of the Societe de legislation com-
paree^ was founded in 1869 and appears monthly. The
same organization publishes the Annuaire de legislation
compofree^ which was begun in 1872, and contains the texts
of the principal laws voted during a year in countries other
than France. On the occasion of the fiftieth anniversary of
the society it published a collection of articles relating to

^Alvarez, A. Une nouveUe conception des etudes jurldiques et de
la codification du droit civil. Paris, Pidaon et Durand-Auzias, 1904.
234 p.

^ Science of legal method. Select essays by various authors. Tr. by
Ernest Bruncken and Layton B. Eegister. Boston, Tl^ Bostcm book
CO., 1917. 593 p.

** Lambert, E. L'enseignement du droit compart Sa cooperation
au rapprochement entre la jurisprudence foancaise et la jurisprudence
angloam^ricaine. Lyon, Rey; Paris, Rousseau, 1919. 118 p.

** Lambert, E. ifitudes de droit commun l^gislatif ou de droit civil
compare. Paris, Giard et Bri^re, 1903. 927 p.

LEGAIi HISTORY 51

the changes in the law during the preceding 50 years in
the principal countries of Europe and America.^®

LEGAL HISTORY

The study of the evolution of French law from the time
of the Roman conquest of Gaul to the promulgation of the
different codes in the early part of the last century pre-
sents a fertile field to the legal historian. Historical
sources are not lacking and sufficient evidence of the legal
institutions of the various periods remains to permit re-
construction of the law in force. While the sum total of
their works is not extremely large, French scholars can not
be said to have been delinquent in making use of the mate-
rial at hand. On the contrary, the results of their research
have contributed much to the general fund of historical
knowledge. Perhaps the best estimate of the value of their
contributions is that of Dean Wigmore, who, in an intro-
ductory preface to the third volume of the Cordinental legal
history series^'^ says : " It is indeed to be regretted that in
this, as in other fields, the repute of German studies in the
past generation has caused many of us to forget the at least
equal merits of French scholarship; not less thorough in
standards nor less broad in scope, it is generally more com-
pact in method and more clear in style." But before going
into a discussion of the works of the more important his-
torians some preliminary reference to historical sources and
the evolution of the French legal system to the end of the
aneien regime in 1789 may be of value.

After the Roman occupation of Gaul, the Celtic and Ger- oaUo-
man inhabitants seem to have been rapidly assimilated to^°™^"
the Roman regime. French historians generally make no Roman
attempt to describe the legal system prior thereto but pass ^^
on to the Gallo-Roman period, during which the law in

^'Les transformations du droit dans les principaux pays depuia
cinquante ans. 186^1919. Paris, Librairie g^n^rale de droit et de
jurisprudence, 1922-23. 2 v.

"' For a discussion of the Continental legal history series see p. 3.
The quotation from Dean Wigmore may be found at p. xxviii, v. 3.

52 GUIDE TO THE LAW OF FRANCE

force was, in the main, that common to the rest of the
Eoman Empire. The historical sources of the period are
necessarily the same as those of the Roman law of the time
and are to be found in the various editions of the Roman
texts. For the surviving fragments of the codes, such as
the unofficial Gregorian and Hermogenian codes and the
official Theodosian Code, recourse must be had to the edi-
tions of German scholars, notably those of HaeneP® and
Mommsen,^^ but the works of the important Roman juris-
consults, such as the Commentarii of Gains, the Sententice of
Paul, and the Regulce of Ulpian, are contained in an out-
standing French edition by Professor Girard.^^

As might be expected, the close association of Roman law
with the early history of French law and the later reception
of Justinian as the basic law in that portion of France
designated as fays de droit ecrit have made the study of
Roman law a subject of peculiar interest to French scholars,
who have produced a number of general works of im-
portance. While not especially devoted to Roman law as a
part of historical sources of early French law, they may
be said to be secondary sources of Roman law as applied in
Gaul and later in France at different stages of the evolution
of French legal institutions.

The outstanding French work on Roman law is that of
Girard, formerly professor of Roman law at the Paris
Law School, published in its eighth edition in 1929 under
the title Mctnuel elemervtaire de droit Tomaim^^ The seventh
edition, which was published after Girard's death, is with-
out an index, and is in part uncorrected. The eighth edition
is revised and augmented by Felix Senn, of the Faculty of
law of the University of Nancy. A portion of an earlier

28Haenel. Codices Gregorianus, Hermogenianus, Theodosianus.
Bonn, Marcum, 1842. Supplementum, 1844. 2 v. in 1.

^Mommsen et Meyer. Theodosiani Ubri xvi cum Constitvtionibvs
Sirmondianis et Leges noveUse ad Theodosianvm pertinentes. Berlin,
Weidmann, 1905. 3 v.

^Girard, P. F. Textes de droit romain. 5. ^d. Paris, Rousseau,
1923. 928 p.

^* Girard, P. F. Manuel ^lementaire de droit romain. 8. 6d. Paris,
Rousseau, 1929. 16, 1223 p.

LEGAL HISTORY 53

edition of Professor Girard's work was translated into
English and published in 1906 under the title A short
history of Raman Ic^m.^^ A further important contribu-
tion by the same eminent authority is his Melanges de
droit romain^^ the first volume of which deals with his-
torical sources and the second with the historical development
of a number of substantive and procedural institutions. An-
other valuable one-volume work is that of Professor Cuq,
also of the Paris faculty, Manuel des institutions juHdique
des Rowmns,^^ Professor Cuq is also the author of a larger
work devoted to the development of Eoman legal institu-
tions. The second volume of this latter work, Les institutions
juridiques des Romains^^ contains an excellent account of
classical Eoman law and the law of the Western Empire.
In addition attention should be called to a valuable histori-
cal study of the law of Justinian, Etudes historiques su/r le
droit de Justinien^^ which was published by Professor CoUi-
net and was crowned by the Academy.

Before leaving the literature dealing with Eoman law
some reference should be made to a number of more elemen-
tary but valuable student texts. Professor Bry, formerly
dean of the law faculty of the University of Aix-Marseilles,
was the author of a very good text, Prindpes de droit ro-
wmn^'^ which was recently revised and published in its
sixth edition by his son Joseph Bry. The popularity of
the Traite element aire ^^^ by Professor Petit, and jSlements

^^Girard, P. F. A short history of Roman law. Tr. by Augustus
H. F. Lefroy. Toronto, Canadian Law Book Company, 1906. 220 p.

^^Girard, P. F. Melanges de droit romain. Paris, Recueil Sirey,
1912-23. 2 v.

'^Cuq, E. Manuel des institutions juridiques des Romains. Paris,
Plon-Nourrit et cie., 1917. 938 p.

^' Cuq, E. Les institutions juridiques des Romains. Paris, Librairie
Plon, 1904-08. 2 v.

^ CoUinet, P. iStudes historiques sur le droit de Justinien. Paris,
Larose & Tenin, 1912-25. 2 v.

^ Bry, G., et Bry, J. Prineipes de droit romain expos§s dans leur
d^veloppement historique. 6. 6d. Paris, Recueil Sirey, 1927. 408 p.

** Petit, E. Traits ^l^mentaire de droit romain. 9, ^d. Paris,
Rousseau, 1925. 804 p.

Period

54 GUIDE TO THE LAW OF FRANCE

de droit romam^^ by Professor May, is attested to by the
fact that they have been recently published, respectively,
in their ninth and seventeenth editions. Professor May's
work has the reputation of being particularly clear. The
list of student manuals was added to by the recent appear-
ance of the Cours ebetnentaire de droit rommn *® which rep-
resents, originally, the work of the late Professor Huvelin,
of Lyon, but was published under the direction of Professor
Monier.
Frankish With the Germauic invasions of the fifth century and the
fall of the Western Eoman Empire in 476, the legal system
of Gaul entered a new phase. Law became personal, each
racial element being governed by its own laws. The prin-
cipal Germanic tribes occupying the province — ^Burgun-
dians, Visigoths, and Franks— brought with them their own
customary laws, but at the same time they left to the Gallo-
Eoman inhabitants the enjoyment of those already in force.
Even after the establidiment of the Frankish Empire the
various German races continued for a time to be governed
by their respective codes. While German law replaced
Roman law as the predominant element, under the theory of
personality of law, the latter was conserved. Additional
factors began to make themselves felt. Canon law became
important, and with the establishment of the Frankish Em-
pire the legislation of the Frankish princes became a part
of the legal order. Due to the ultimate supremacy of the
Franks, this second period is generally referred to by
French historians as the Frankish period.

The principal historical sources are the compilations of
the so-called barbarian laws, leges harharorum, or folk law.
Of these the Salic law of the Franks or Leoo salioa is the
most important. The Franks had no special code for their
Gallo-Roman subjects, but the Burgundians and Visigoths,
in addition to legislating for their own peoples, compiled
codes of Roman law. All of these various compilations are
contained in different modern editions which represent the

^May G. filaments de droit romain a I'usage de ^tudiants des
facult^s des droit. 17. 4d. Paris, RecueU Sirey, 1927. 753 p.

**HuveUn, P. Cours ^14mentaire de droit romain. Paris, Recueil
Sirey, 1927. 761 p.

LEGAL HISTORY 56

painstaking work of German historical scholars as well as,
in part, that of French and English.

There are a number of modern editions of the Lex s(dica.
A good French edition is that of Pardessus, published by
the French Government in 1843.*^ Perhaps the best German
edition is that of Behrend.*^ In addition, we have an excel-
lent English edition by Hessels and Kem.^^ A new critical
edition is now said to be in the course of prepai'ation for the
Monumenta Gerrriarmie historica. The Lex romanm Bur-
gundionuin^ or as it is sometimes erroneously called, Papian,
appears in the Monumenta Germamcie historica in two
editions, one by Professor Bluhme, of 1862,^* and another
by Professor Von Salis, of 1892.*^ The same collection also
contains two editions of the Burgundian Code, or, as it is
sometimes called in French, Loi GoTribette. Both editions
represent the work of Bluhme and Von Salis.^® Attention
should be called to a new manuscript which received care-
ful study on the part of Professor Petot in the Nouvelle
revue Mstorique de droit in 1913 (pp. 337-375). Prof^or
Zeumer's edition of the Leges Visigothoruin *^ also appears
in the Monumentct Germaniae historica and the Lex ro7mma>
Visigothonmi or Breviary of Alaric is contained in an excel-
lent edition by Haenel.^^

"Pardessus, J. M. Loi salique ou recueil contenant les ancienne»
redactions de cette loi et le texte connu sous le nom de lex emendata
avec des notes et des dissertations. Paris, Imprimerie royale, 1843.
Ixxx, 740 p.

**Behrend, F. J. Lex salica. 2. aufl. von R. Behrend. Weimar,
H. Bohlaus, 1897. 236 p.

*' Hessels, J. H., and Kern, H. Lex salica; the ten texts with the
glosses, and the Lex emendata. London, J. Murray, 1880. 692 col.
on 252 p.

**Monvmenta Germaniae historica. Berlin, Wiedmann, 1826-1920;
Bluhme, Lex romana Burgundionum, Leges, v. iii, 1863, p. 579-624.

*^ Op, dt. note 44. Von Salis, Lex romana Burgundionum, Leges,
pars. I, V. II, sect, i, 1892, p. 2^116.

*^0p. cit. note 44. Bluhme, Lex Gundobada, Leges, v. iii, 1863,
p. 497-578. von Salis, Lex Gundobada, Leges, sect, i, v. ii, pars, i,
1892.

*^ Op, oit, note 44. Zeumer, K, Leges Visigothorum, Leges, sect, i,
V. I, 1902.

*^Haenel, G. Lex romana Visigothorum. Lipsise, Teubner, 1849.
468 p.

56 GUIDE TO THE LAW OF FRANCE

The Capitularies, or legislation of the Frankish kings, were
first edited in 1677 by Baluze, Colbert's librarian. In 1780
this edition was revised and added to by Pierre de Chiniac,
who, considering the time at which it was done, did an
excellent piece of work.^^ Two new editions appear in the
Monurrienta Germaniae historica. Of these that of Bore-
tius and Krause is considered by French historians to be
much the better and is the one which is usually cited.^^
Feudal The disintegration of the Frankish Empire was followed

Period j^y feudalism, which, unlike its English counterpart, had
but little effect on the private law, as it ultimately appeared
in the various codes ; but, besides having an important bear-
ing on the history of public law, the feudal period, lasting
from the tenth to the sixteenth century, was also marked
by events which played an important part in the evolution
of the modern law. Probably as early as the ninth century
the theory of personality of law began to give way to that
of territoriality, the change becoming complete in the course
of the tenth century. Unfortunately this change did not
bring about uniformity. On the contrary, different com-
munities followed different customary laws, so that from a
diversity growing out of a difference of racial laws the
transition was one to a diversity growing out of a differ-
Regionai cucc of territorial laws. In the north the Frankish popu-
lation was in the majority, and Eoman law, rarely applied,
became less important. On the other hand, in the section
of France generally designated as the Midi, the Gallo-
Roman population was more numerous, and Roman law,
more frequently applied, became the predominant basis of
the customary law. In the beginning the Roman law of the
Midi was that of the Theodosian Code conserved in the com-
pilations of the Visigoths and Burgundians. However, the
eleventh century saw the renaissance of the study of Roman
law at Bologna, a renaissance which in spite of opposition
spread to all Europe and eventually brought about the sub-

^® Baluze. Capitularia regum Francorum. Paris, 1677. 2 v. Nova
ed. Curante P. de Chiniac. Parisiis, F. A. QuiUau, 1780. 2 v.

^ Op. cit. note 44. Boretus, Leges, sect, ii, v. i, 1881-83; Krause,
V. II, 1890-^7. This edition was begun by Boretius and completed by
Krause.

Customs

LEGAL HISTORY 57

stitution in France of Justinian, not only as the basic law
of the Midi but also as the secondary source in the north.
Probably by the end of the thirteenth century the Roman
law of Justinian and droit ecrit^ the term applied to the law
of the Midi, had become synonymous. The general division
of France into sections, one called pays de droit ecrit and
the other pays de droit coutwnier^ with further subdivisions
resulting from local custom, continued until the promulga-
tion of the codes.

A discussion of Roman law and regional customs appears
in Vol. I, pp. 203-250, of the Continental legal history series.

However tempting it might be to linger over the works
of the glossators and their successors, as well as the principal
works of the Middle Ages on canon law, it is necessary to
pass on to the more important historical sources of the period,
the Coutvmmers. The customary laws of the different parts
of France were not officially compiled until the sixteenth
century, but as early as the beginning of the thirteenth a
number of books on customary law, called Coutvmders^ made
their appearance as the works of the first French juriscon-coutu-
sults, who occupy in French legal history much the same^^i^^^^
position as Bracton in the early history of English law.
The first to appear was the Tres ancien cowtumier de Nor-
77iandie (between 1194 and 1204) which exists to-day in
two forms, one French and the other Latin. Chronologically
it was followed between 1254 and 1258 by the Grand
cowtmmer de Normandie^ the landmark of Norman law and
still the basis of the existing legal system in the Isle of
Jersey. Another outstanding Coutumier of the same century
is Les coutwmes de Beam/Doisis^ the work of Beaumanoir, who
in addition to being an authority on legal matters seems
to have been an individual of catholic tastes. Of other works
of the time mention may be made of Conseil a un and^
Livre de jostice et de plet and the ^tcMissements de Saint
Louis.

Beginning with the fourteenth century, private works on
customary law became numerous, the local laws of practically
all of France having become the subject matter of one or
more Goutmmers, Of those which followed, lack of space

58 GUIDE TO THE LAW OF FRANCE

makes it impossible to mention more than two of the more
important, the Tres andenne coiiiy/me de Bretagne and the
Gromd o(mtvmiier de Fra/noe^ or as it is sometimes called,
the Grand ooutmnieT* de Charles vi.

The various coutumiers which have just been referred to
are contained in modern editions which display a high
type of French legal research. Both Cimtwmiers on Norman
law are contained in an excellent work by Professor Tardif
which gives ample introductions to the different texts.*^^
There is also a very good edition of the Grand cowtwrder
by Laurence de Gruchy, of the Isle of Jersey.^^ The best
edition of the Goutvmrjes de Beamvaim of Philippe de
Remi, is that edited by Salmon.^^ ConseU a un ami was
edited in 1846 by Marnier under the title Le conseU de
Pierre de Fontaines ^^ and the Livres de josHce et de plet
by Rapetti in 1850.^^ Professor VioUet published an out-
standing critical edition of the Etahlissements de Saint
Lends in 1881-1886,'^® the text being preceded by an intro-
duction of 480 pages containing a thorough study of the
source, the contents, and influence of the Goutv/rrmrs
as well as a study of the different texts. The Tres andenne
cowtwme de Bretagne is contained in an edition by Pro-
fessor Planiol,^^ and the Grand c(ndmnier de France ^^ was
edited in 1868 by Laboulay and Dareste. Unfortunately

"Tardif, J. Coutumiers de Normandie. Paris, Picard, 1887-96.
2 v.

"de Gruchy, WiUiam Laurence. L*ancienne coutume de Norman-
die. Jersey, 1881. 420 p.

"PhiUppe de Remi. Coutumes de Beauvaisis; texte critique pub.
. . . par. Am. Salmon. Paris, Picard, 1899-1900. 2 v.

•^Marnier, A. J. Le conseU de Pierre de Fontaines, ou Traits de
Tancienne jurisprudence frangaise. Paris, Joubert; Durand, 1846.
532 p.

* Rapetti, P. Li Livres de jostice et de plet ; pub. pour la premiere
fois d'apr^s le manuscrit unique de la Bibliotb^ue Nationale, avec
un glossaire des mots hors d'usage par P. Chabaille. Paris, Didot,
1850. lii, 451 p.

**Viollet, P. Les ^tablissements de Saint-Louis. Paris, Renouard,
H. Loones, 1881-86. 4 v.

"Planiol, M. La tr^s ancienne coutume de Bretagne, Edition
critique. Rennes, Plihon et Hevr4, 1^6. 5^ p.

"^ Laboulay et Dareste. Le grand coutumier de France. Nouv.
6d. Paris, Durand et Pedone-Laurlel, 1868. 848 p.

LEGAL HISTORY 59

the latter only reprodueed the Gothic editions and did not
make use of all the available manuscripts.

Lack of space makes it impossible to do more than refer
to a further source of the law of the feudal period, court
decisions. They are dealt with in modern histories such as
those of Chenon and Brissaud, which will be referred to
later, and are also discussed along with regional customs in
the first volume of the Continental legal history series
(p. 203-250).

From the point of view of the historian interested pri- Monarchi-
marily in external history, the most important events of the ^
monarchical period, beginning with the sixteenth century
and continuing to the end of the ancient regime, are the
official compilation of the customary law, the revival of the
importance of legislation, and the appearance of the works
of a number of jurisconsults who occupy much the same
position in the legal literature of France as do Littleton,
Coke, and Blackstone in ours.

Although Charles vii ordered the official compilation of
the customary law, the real work was not begun until the
reign of Charles viii. Of the more important compila-
tions, C<mtvmies d^Orleams was promulgated in 1509, Covr'
twnes de Paris in 1510, and Cowtumes de Bretagne in 1539.
Later, near the end of the same century, many of the early
compilations were revised. Bourdot de Kichebourg collected
practically all the official compilations in 1724 in a work
which might almost be called classical.^^

In so far as effect on modem law is concerned, the mostRoyai
important legislation is that of the reign of Louis xiv. legislation
Among the ordinances which should be mentioned are one
of 1667 dealing with procedure and published under the
name Ordonnance civile touchant la reformMion de la jus-
tice (sometimes called Code Lowis) and another of 1670
dealing with criminal matters. But the best known to
Americans are those of 1673 and 1681 concerning, respec-
tively, commercial and maritime affairs. The first was com-
monly called Code Savary^ the name being derived from

*'* Bourdot de Richebourg, C. A. Nouveau coutumier g^n^ral.
Paris, Le Gras, 1724. 8 pt. in 4 v.
49926*'— 31 5

60 GUIDE TO THE LAW OF FRAKCE

that of its distinguished inspirator. It is also sometimes
referred to as the Code marchcmd. The second went under
the name of Code de la marine^ and in addition to having
formed the basis of modern French maritime law it is often
cited in American and English cases as one of the great
maritime codes. The legislation during the reign of Louis
XIV receives extensive discussion in English in the biog-
raphy of Colbert, the famous minister of Louis xiv, which
appears in Great jwrists of the yx>rld^ the second volume of
the Gontmental legal histmn/ series (pp. 248-282).

There are two collections of royal legislation or ordon-
nanoes which merit attention. The publication of the first,
Collection des ordonnances et lois frarvgaises^ commonly
called Collection des ordormmwes da, Louvre and often Le
recueil des ordorwvotces des rois de Frcmee de la troisieme
race^^ was begun by Eusebe de Lauriere, the first volume
appearing in 1723. Interrupted by the Revolution its pub-
lication was continued by the Academie des inscriptions et
helles'lettres. The legislation covered goes down to 1515.
The legislation after that date, being considered within the
field of modern history, is being prepared for publication
by VAcadeTnie des sciences morales et politiques. While
this collection is not perfect it is the best that exists. The
other collection is the result of private enterprise and repre-
sents the work of Isambert, Jourdan, and Decrusy. Its title
is Recmeil general des anciennes lois fran^aises^^^ but it is
usually cited under the title Recueil d^Isamhert or Recueil
de Jowrdmo et Isamfihert. This latter collection is incom-
plete and unhappily contains a number of errors.
Juris- Lack of space makes it impossible to do much more than

consults mention the names of the outstanding jurisconsults of the
sixteenth century. Judged from the point of view of effect
on modern law the most important is Charles Du Moulin
(1600-1566), who, besides producing as his greatest work
a commentary on the first title of the Custom of Paris,

*^ Ordonnances des roys de France de la troisieme race, recueiUies
par ordre ehronologique. Paris, Imprimerie Royale, 1723-1847. 23 v.

*^ Isambert, Jourdan, Decmy. RecneU general des anciennes lois
francaises, depuis Tan 420 .lusqu'a la Revolution de 1789. Paris,
182^33. 29 V.

LEGAL HISTORY

61

Trcdte des fiefs^ wrote among other treatises on Eoman law
one entitled ^^ Extricatio Idbyrinthi dwidkd et individuij^
which served as the basis of the present French theory of
divisible and indivisible obligations. (Civil code, arts. 1217
to 1225.) Other writers of the same century who helped to
shape the law of their time are d'Argentre, Coquille, and
Loysel.

The foremost writer of the seventeenth century is Jean
Domat (1625-1694), whose treatise, Les lots civUes dans lewr
ordre naturel^ besides exercising an influence on the writers
of the eighteenth century, notably Pothier, was responsible
for several articles in the Civil code. A 4- volume edition,
with references to the Civil code, was published by Joseph
Eemy in 1829 and 1835.^^ Attention should be called to an
early English translation (1720) by William Strahan, ad-
vocate in Doctors' Commons, which was edited by Luther
Cushing in 1850 and published under the title The civil law
in its natural order,^^ The preface to this translation which
was commonly found on the shelves of American lawyers
of two generations ago, contains a short account of Domat's
life.

The best known and most popular pre-code jurisconsult is
Robert Joseph Pothier who was born at Orleans in 1699 and
died in 1772. No other writer contributed as much to
French law as it ultimately appeared in the Civil code*
Professor at the University of his native city, he, unlike his
predecessor Domat, made no attempt to treat the law as a
whole but wrote a series of treatises on the different sub-
jects comprised in practically the entire field of the civil
law. The outstanding qualities of his works are generally
said to be their clarity, precision, and rational arrange-
ment; their greatest defect, lack of originality. Pothier's
scientific career began with the publication ill 1740 of the
Coutumes d'^OrUans^ which was revised in 1760 and may
be said to form an introduction to his other works, of which
the best known is his Traite sur les ohUgations published in

® Domat. Les lois civiles dans leur ordre naturel, nouv. ^d. en
rapport avec le Code civil, par J. Remy. Paris, Gobelet, 1835. 4 v.

** Domat. The civil law in its natural order. Edited from the 2d
London ed., by Luther G. Cushing. Boston, Little and Brovm, 1850.
2 V.

62 GUIDE TO THE LAW OF FRANCE

1760. Usually it is preferable to use original editions but
as these are often difficult to obtain, reference should be
made to the more important later editions of Pothier's works.
Probably the best is that of Bugnet, in 11 volumes, which
were first published between 1845 and 1848 and were anno-
tated to the Civil code.®* Another important edition which
is often referred to is that of Dupin.^^

Pothier's treatises in addition to their popularity in
France were well known to the earlier gener'ations of Ameri-
can lawyers. While they are now largely of historical
value ofliy, it is believed that the different translations of
l^rticular treatises which appeared in the first half of
the last century are still of sufficient importance to be
indicated in a rw)te.^^

No discussion of French jurists and legal writers would
be complete without some reference to Jacques Cujas (1522-
1590) who was responsible for the firm establishment of
the humanist and historic method of treatment of Roman
jurisprudence as opposed to the earlier scholastic method.
His life, works, and place as a Romanist are fully dealt
with in Great jwists of the world, the second volume of
the GorUinental legal history series.

Before turning to modern works on French legal history
mention should be made of the fact that the same volume
contains an essay dealing with Pothier and his place as a
jurist (447-476) and a few pages devoted to a discussion

^Bugnet, M. CEuvres de Pothier, annotees et mises en correlation
avee le Code civil et la legislation actuelle. Nouv. 6d. Paris, Cosse
et Marchal. 1861-90. 11 v.

"Dnpin. CEuvres de Pothier. Nouv. 6d. Paris, Bechet, 1835. 11 v.
«» Pothier, R. J. A treatise on obligations, considered in a moral
and legal view. Tr. from the French. Newbern, N. C, Martin and
Ogden, 1802. 2 v.

Treatise on the contract of sale. Tr, from the French by L. S.
Gushing. Boston, C. C. Little and J. Brown, 1839. 406 p.

A treatise on maritime contracts of letting to hire. Tr. by Caleb
Cushing. Boston, Cummings and Hilliard, 1821. 170 p.

A treatise on the contract of partnership, with the Civil code and
Code of Commerce relating to that subject, in the same order. Tr.
from the French, with notes referring to the decisions of the Eng-
lish courts. By O. D. Tudor . . . London, Butterworths, 1854.
144 p.

LEGAL HISTORY 63

of Du Moulin (pp. 105-106, 458-460). In passing^ attention
should also be called to the fact that the essays contained in
this volume give a valuable exposition of the legal back-
ground of the time during which each of the jurists dis-
cussed lived. A very good short discussion of the jurists,
as well as royal legislation, from 1500 to 1789 may be found
in the first volume of the same series (pp. 251-273).

It is somewhat of a temptation to pass in review the entire Modem
field of works devoted to French legal history, but it is be- ^^ .
lieved that the purposes of this discussion can be better
served by devoting our time to those whidi are more im-
portant.

In a review of a recent history of French law writt^ by
Professor Declareuil, of Toulouse, Professor Hazeltine, of
Cambridge, calls attention to the fact that the work of writ-
ing a one- volume legal history is a task which few French
jurists have undertaken. {Some aspects of French legal
history^ 43 Law Quarterly Review 212.) It was done by
Esmein and VioUet and more recently by Declareuil, who
are representative of that clarity and (X)nciseness of style
which are the outstanding characteristics of the best of
French scholarship.

Professor Esmein's Cours elemeTiiaire d^histoire du droU
fram^gais ^^ was first published in 1892 primarily for the use
of first-year law students. Due to this fact it is principally
devoted to a study of the history of public law and only
deals with private legal institutions in so far as they relate
to public law. It begins with a short chapter on Roman
institutions in Gaul in the fourth century and as is usually
the case with French legal histories, goes down to the end of
the aneien regime in 1789. Always a very popular work it
was recently revised by Professor Genestal and published in a
fifteenth edition. Although somewhat systematic it should
be classed as one of the best French legal histories.

The recent scholarly work of Professor Declareuil, His-
toire generale du droit frarigais^^^ like that of Professor

•^ Esmein, A. CJours 614mentaire d'histoire du droit frangais. 15. 6d.
Paris, Recueil Sirey, 1925. 784 p.

^Declareuil, J. Histoire g^n^rale du droit frangais des origines k
1789. Paris, Recueil Sirey, 1925. 1,077 p.

64- GUIDE TO THE LAW OF FRANCE

Esmein, deals primarily with public law. While adapted to
the needs of first-year students it is also intended to be used
by more advanced students. More thorough and equally
scholarly, Professor Declareuil's work should enjoy a popu-
larity comparable with that of its predecessor. It might b©
added that it has the reputation of being particularly good
with respect to the institutions of the monarchical regime.

Unlike the two histories which have just been referred to,
the one-volume work of Professor YioUet, Droit prive et
sov/rces, Histoire du droit civil frarbQcm^^ is primarily a
history of private law. The first part is devoted to sources
and the second and third to the development of such im-
portant fields as persons, the family, property, and con-
tracts. It is the only good one-volume work on the history
of private law.

Professor VioUet was also the author of an equally im-
portant history of political and administrative institutions
which deals at length with the public institutions of the
various periods of French history.*^^

The different works which have just been referred to are
principally devoted to one particular field, private, or public
law. In addition there are two well-known works which at-
tempt to cover the entire field of legal history, those of
Brissaud and Chenon.

Professor Brissaud's Manuel d'^Mstoire dw droit fran-
gais "^^ is a 2-volume work which is divided into thre.e parts,
of which the first is devoted to sources, the second to public
law, and the third to private law. The first two parts are
arranged chronologically, while in the third the author
abandons the chronological arrangement for the purpose of
treating the development of leading doctrines under a num-

*® VioUet, P. Droit prive et sources. Histoire du droit civil fran-
gais. 3. ed. Paris, Larose et Tenin, 1905. 1,012 p.

'"^Viollet, P. Droit pubUc. Histoire des institutions poUtiques et
administratives de la France. Paris, Larose & Tenin, 1890-1893.
3 V. I. P^riode gauloise, Gallo-romaine, franque, 1890. ii. P^riode
frangaise, moyen-age, 1898. in. P^riode frangaise, moyen-age suite
et fin, 1903.) Le roi et ses ministres pendant les trois derniers siMes
de la monarchie, 1912. 615 p.

"Brissaud, J. Manuel d'histoire du droit frangais (sources, droit
public, droit prive). Paris, Fontemoing, 1898-1904. 1,892 p.

LEGAL HISTORY 65

ber of comprehensive headings. The work is remarkable
for its breadth of learning and extensive use of every possi-
ble source. At the same time it contains a number of inac-
curacies and for that reason should be read with caution.
Different portions of Professor Brissaud's work have been
translated into English and appear in the Continental legal
history series^ notably in Volume iii and in Volume ix,
entitled, respectively, a History of French private lam and
a History of French Public Law,

The recent scholarly work of Professor Chenon was cut
short by the unfortunate death of the author, who was only
able to complete the first volume. A second volume is now
being prepared by Professor Olivier Martin, of the Paris
faculty. When finished the Histoire generoUe du dr*oif fran^
gais publio et prive'^^ will, unlike most French histories,
cover the evolution of public and private law down to 1815.
The first volume, which deals with the Gallo-Eoman, Frank-
ish, and feudal periods, is arranged chronologically and
in addition to discussing private and public institutions,
contains excellent summaries of the more important source
material of each period. Probably no work on French legal
history is its equal in the treatment of the evolution of the
law during the feudal-customary period.

Attention should be called here to a valuable periodical
devoted to legal history. La revue Mstorique de droit fran-
gais et Stranger^ v/hich was founded in 1855 by a group of
important legal historians of the time.

Before passing on to the more important historical studies
of particular branches of the law some reference should be
made to several writers whose works, although referred to
from time to time, are no longer considered as of first im-
portance. Professor Glasson, a prolific writer, produced
an 8-volume history of French law and institutions,''^ an
elementary manual,'^^ and a 6-volume comparative history

" Chenon, E. Histoire generale du droit frangais public et prive
des origines k 1815. Paris, Recueil Sirey, 2 v. t. 1, 1926 ; t. 2, fasc. 1,
1929.

"^^ Glasson, E. Histoire du droit et des institutions de la France.
Paris, Pichon, 1887-1903. 8 v.

'* Glasson, E. Precis ^l^mentaire de I'histoire du droit frangais.
Paris, Pichon, 1904. 598 p.

66 GUIDE TO THE LAW OF FRANCE

of English and French law/^ none of which measure up to
the high standards of the more important works which
have just been discussed. Professor Beaune's works on cus-
tomary law, published between 1880 and 1889, including the
most important, Droit covatmrner frcmgais^^ although good,
are now too old in the light of recent studies. As was often
the case with earlier historical works they are somewhat
superficial. The same criticism could be made of Klimrath's
Travcmx sur Vhistoire du droit which was published in
1843.^^

Turning now to the more important studies of particular
branches of the law, our task is primarily one of selection.
A number of pages could be profitably devoted to a dis-
cussion of a large array of theses and monographs on par-
ticular phases of legal history, but it is necessary to con«
fine our attention to those which appear to be of outstanding
importance.

The historical development of marriage has received ex-
tensive treatment by a number of French historians. The
most important work is that of Professor Lefebvre, of the
Paris faculty, who, under the heading Covjrs de doctorat swr
Vhistoire du droit mMrimomM frajrhgais^^ published several
separate volumes which comprise Introduction generate^ Le
lien du maxriage and Le droit des gens maries. Mention
should be made of an excellent work by Professor Esmein,
Le nrwriage en droit canonique.'^^ The best theses are those

'^Glasson, E. Histoire du droit et des institutions politiques,
civiles et judiciaires de 1' Angle ter re, compares au droit et aux insti-
tutions de la France. Paris, Pedone-Lauriel, 1882-83. 6 v.

'® Beaune, H. Droit coutumier f rangais : Introduction k I'^tude
historlque du droit coutumier frangais. Lyon, Briday, 1880. 566 p.

"Klimrath, H. Travaux sur rhistoire du droit f rangais, recueillis,
mis en ordre avec preface par L. A. Warkoenig. Paris, Joubert, 1843.
2 V.

'* Lefebvre, Ch. Cours de doctorat sur Thistoire du droit matri-
monial frangais. Paris, Recueil Sirey, 1906-23. 3 parts and an
appendix.

■^Esmein, A. Eltudes sur I'histoire du droit canonique prlve. Le
manage en droit canonique. Paris, Larose et Forcel, 1891. 2 v. A
second edition by Genestal is now being published. The first volume
appeared in 1929. The second is announced as in press.

LEGAL HI8T0RT 67

of Olivier Martin and Basdevant, La arise du nmriaffe d(ms
la legislation intermediaire ^^ and Des rapports de Veglise et
Vtat dans la legislation dhjtk mariage.^^ Professor Lefebvre
is also the author of an important history of the law of suc-
cessions published under the title Vcmcien droit des succes-
sions.^^

Professor Esmein, whose manual on French legal his-
tory has already been referred to, in addition published a
valuable history of criminal procedure, Histoire de la pro-
cedure criminelle en Fr(mce^^ which appeared in 1881. A
translation of Part i, Title ii, and Parts ii and m of this
outstanding piece of work appears in History of contin&ntod^
crinvinul procedure^ vol. v of the Continental leg(d history
series. The history of civil procedure is dealt with in Eng-
lish in the seventh volume of the same series in a number
of essays from various sources.

Attention should also be called to an important historical
study of the custom of Paris now being prepared by Profes-
sor Olivier Martin, of the Paris faculty. The first volume
wa^ published in 1922 under the title Histoire de la coutmne
de la prevote et vicomte de Paris.^^ The second volume is
now appearing in parts. Professor Olivier Martin is also
the author of another shorter work, La coutume de Paris^
trait d^wnion entre le droit romain et les legislations mo-
demes.^^ This latter work consists of a series of lectures
delivered at the University of Utreclit in 1925.

^** Martin, Olivier. La crise du mariage dans la legislation tnter-
m^diaire (1789-1804). Paris, Rousseau, 1901. 263 p.

"^Basdevant, J. Des rapports de I'^glise et l']fitat dang la legisla-
tion du mariage, du Conclle de Trente au Code civil. Paris, Larose,
1900. 236 p.

*^ Lefebvre, Oh. L'ancien droit des successions. Paris, Becueil
Sirey, 1912-18. 2 v.

^Esmein, A. Histoire de la procedure criminelle en France et
sp^cialement de la procedure inquisitoire, depuis le xiii® si^cle
jusqu'a nos jours. Paris, Larose et Forcel, 1882. 596 p.

^ Martin, Olivier. Historic de la coutume de la pr^vOte et vicomt6
de Paris. Paris, Leroux, 1922-26. 2 v. Vol. 1 has been published;
parts, only, of v. 2 have been published.

^"^ Martin, Olivier. La coutume de Paris, trait d'union entre le
droit romain et les legislations modernes. Paris, Becueil Sir^, 1925.
83 p.

bo GUIDE TO THE LAW OF FRANCE

In addition mention should be made of two works on legal
sources by Professor Tardif, Histoire des sources diA droit
frcmgaisj oriffmes roTuaines ^^ and Histoire des sowces dm
droit canonique^^'^ which though somewhat old are still con-
sidered as important.

Before closing the discussion of French legal history to the
end of the ancien regime^ it is believed to be well worth
while again to call attention to the Continental legal history
series^^ different parts of which have been referred to from
time to time in the foregoing pages. Published under the
direction of an editorial committee of the Association of
American Law Schools the series is intended to give a gen-
eral survey of the historical development of law on the Con-
tinent down to modern times and to render accessible to
the reader limited to English, selected material from the
works of outstanding continental writers. To quote in part
from the general introduction to the series, it covers the
legal history of " France, Germany, and Italy as the central
fields, leaving the history in other countries to be touched so
far as might be incidentally possible." The service rendered
in broadening the horizon of the American lawyer could
hardly be exaggerated.

CODIFrOATTON

The promulgation of the Civil code in 1804 is the out-
standing event in the evolution of French law. The old
regime was primarily one of diversity; one might almost
say of chaos. Although from time to time various writers
expressed a desire for legal uniformity and some progress
in that direction was made in the legislation during the
reign of Louis xiv, it remained for the revolution to pre-
pare the ground for, and the consulate to achieve, what the
monarchy had been unable to bring about — legal as well as
political uniformity.

*^ Tardif, A. Histoire des sources du droit frangais, origines
romaines, Paris, Picard, 1890. 527 p.

^ Tardif, A. Histoire des sources du droit canonique. Paris, Picard,
1887. 409 p.

^^ The Continental legal history series, published under the auspices
of the Association of American law schools. Boston, Little, Brown,
& Co., 1912-27. 10 V. See Introduction, p. 3.

LEGAL HISTORY t)9

As early as 1790 the Constituent Assembly declared that
it would undertake the compilation of a general code. The
Constitution of 1791 reaflSrmed this intention. But the first
real step was not taken until 1793, when the convention
ordered its legislative committee to prepare a general proj-
ect. Cambaceres, acting for the committee, presented a
plan in August of the same year. It was rejected as being
too complicated, not practical enough, and not in accordance
with the spirit of the times. Kearranged and revised, it was
again presented in 1794 by Cambaceres and again rejected.
Later a third plan was presented to the Council of Five
Hundred, but without result. A further unsuccessful at-
tempt was made in 1799, when Jacqueminot, a member of the
Council of Five Hundred, submitted varioue laws looking
toward codification. These were not even examined. Im-
mediately thereafter the project was revived and this time
effectively.

A consular decree of July 13, 1800, named a commission
of four members, Tronchet, Bigot-Preameneu, Maleville,
and Portalis, who after four months' labor presented a
preliminary plan. This plan was submitted to the Court
of Cassation and the Courts of Appeal, after which it was
sent to the Council with the observations of the judiciary.
There it was amended in part and then submitted to the
THhrniat and legislative corps as the official project of the
Government. At first its success seemed doubtful, but the
different titles were eventually approved separately and
united in the one body on March 21, 1804, when the Code
was promulgated under the name Code civil des From^ais.

The Civil code was followed by others at short intervals,
The Code of civil procedure was voted in 1806 and became
effective on January 1, 1807. The Code of commerce was
adopted in 1807 and went into effect on January 1, 1808.
The Code of criminal procedure and the Penal code, voted,
respectively, in 1809 and 1810, both went into effect on
January 1, 1811. Since the promulgation of the codes of
the Napoleonic regime other parts of French law have been
codified in whole or in part. Forestry laws were codified
in 1827 under the name of Code forestier and the special
rules concerning the penal law applicable to soldiers and

70 GUIDE TO THE LAW OF FRANCE

sailors in active service were promulgated in the form of
two codes, Code de justice miUtmre pow VArnwe de terre
and Oode de justioe mMUaire powr VArmee de mer in 1857
and 1858.

Many of the various general works on civil law, such as
the elementary treatises of Planiol and Colin and Capitant,
give good summary accounts of the adoption and promulga-
tion of the Civil code. A translation of the account given
by Professor Planiol may be found in the first volume of the
Continental legal history seHes under the titte The Revo-
lution and the Codes (pp. 274-305). The best article in
Anglo-American periodicals is that of Judge Charl^ S.
Lobingier, Napoleon, and hM code (32 Harvard Law Review
114, amplified.in 7 American Bar Associai;ion Journal, 383).
In addition to giving an historical account of the adoption
of the Code, it also gives an excellent appreciation of the
sources from which its contents were derived. The com-
plete legal history of the intermediary period, the Consu-
late and the Empire, is dealt with in a valuable work by
Professor Esm^in.^^ The various documents concerning the
preliminary work of codification have been publidaed in
different works. In 1805 Maleville, a member of the con-
sular committee, gave a resume of the proceedJuags in his
Analyse Emsannee du Code cwU au ConseU d^£tat.^^ They
were also reproduced in two later publications by Fenet and
Locre, The work of the latter, LegidoMmi dvUe^ comm0r*
dale et crtTmnelle de loi Fnmoe ^^ embraces the five codes of
the Napoleonic era, but it is less complete than that of
Fenet, Beemeil oomplet des tra^aws freparatoiT^^^ with
respect to the Civil code, as it does not contain the observa-

'^Esmein, A. Precis el^mentaire cle Thistoire du droit fran§ais de
1789 k 1814. Revolution, consulat & empire. Paris, RecueU Sirey,
re^tot 1911. 382 p.

** Malddaie. J. de. Analyse raisctfiii^ de la discBsston du Code civil
au CoBfleil d'J^tat. 3. kA, Paris, 1^2. 4 v.

^^Locr^, J. Legislation civile, conanerciale et criminelle de la
France ou commentaire et complement des cinq cades fran§ais. Paris,
1826-^. 31 V.

"Fenet, P. Reeneil complet des travaux pr^paratoires du Code dvil.
Parte, 182T. 15 T.

CIVIL CODE 71

tions of the courts. Another work well worth consulting is
that of Portalis, also a member of the consular commission.
The latter was published by his grandson in 1845 under the
title Discours^ rapports et travaux inedits sur Is Code dvU.^^

CIVIL CODE

The Civil code is the most important single repository of
French law. As a sort of general common law {droit com-
mun) the principles which it contains govern in the absence
of provision in other codes or legislative enactments.

The Code contains a preliminary title and three books,
which in turn are divided into titles, chapters, and sections.
The preliminary title deals generally with the promulgation,
effect, and application of laws. It comprises the first six
articles.

The first book is entitled Des personnes and comprises Contents
articles 7 to 515. Title 1 deals with the enjoyment and loss
of civil rights and the distinction between French citizens
and foreigners. Title 2 treats in general of the recordation
of births, marriages, and deaths. Title 3 deals with civil
domicil; title 4 with absent persons and the effects of ab-
sence ; title 5 with marriages ; title 6 with divorce ; title 7 with
paternity, filiation, legitimacy, and legitimation ; title 8 with
adoption; title 9 with paternal authority; title 10 with
minority, tutelage, and emancipation; and title 11 with
majority and incompetency.

The second book, comprising articles 516 to 710, deals with
property. Title 1 treats of immovable and movable prop-
erty. Title 2 deals with ownership and accession, title 3
with usufruct, and title 4 with easements.

The title of the third book is somewhat vague : Des differ-
enfes maimeres donH on acqmert Im propriete. Its general
content is more than twice that of the other two books com-
bined, since it comprises a total of 1,571 articles (articles
711 to 2281). Title 1 deals with successions. It treats of
the opening of a succession and the seisin of the heirs; the

•'Portalis, J. Discours, rapports et traraTix in^its sur le Code
civil, publics et pr6c6d4s d*une introduction par le vieomte F. Portalis.
Paris, Joubert, 1844. 495 p.

72 GUIDE TO THE LAW OF FRANCE

civil law presumptions of survivorship; the order of inheri-
tance ; irregular succession, including the succession of ille-
gitimates; the succession of surviving husband and wife;
escheat ; acceptance and refusal of successions ; and partition.
Title 2 deals with gifts inter vivos and wills. Title 3 deals
with contracts and consensual obligations in general. It also
contains important provisions concerning proof (arts. 1351
to 1381). Title 4 deals with obligations not arising out of
contract, and title 5 with the marriage contract and the rights
of husband and wife arising out of the community system
and special contract. Titles 6 to 15 deal with a number of
particular contracts, such as sales, the contract of exchange,
hiring, partnership in so far as the civil partnership and
special rules in addition to those contained in the Commercial
code are concerned, loans, deposits, aleatory contracts,
agency, suretyship, and compromises. Titles 16 to 20 deal
with pledges, other than commercial pledges, mortgages and
liens, forcible dispossession, and prescription.
Sources Excellent summaries of various general matters concern-

ing the Civil code, such as its sources, its qualities and
defects, may be found in the different elementary treatises on
civil law which will be noted later. An exceptionally good
discussion appears in the elementary treatise of Professor
Planiol (infra).

The sources which were utilized are extremely diverse.
The more important in the order named are the Coutwrnes^
especially that of Paris, E-oman law, royal legislation, and
laws enacted during the revolutionary period. As between
Eoman law and the customary law of the North, the influ-
ence of the latter was much the greater. The only important
subject in which Eoman law, in case of conflict between the
two, was able to predominate is that of the dotal regime
which was not only conserved but extended to all of France.
In addition, it supplied the general rules applicable to obli-
gations and ownership. Most of the provisions with respect
to incapacity of married women, marital authority, and the
community system were derived from customary law, which
also furnished a number of rules concerning successions.
Revolutionary legislation formed the basis of the law relat-
ing to majority, the civil marriage, and the hypothecary

CIVIL CODE 73

regime. Eoyal legislation influenced in part the law of
gifts, wills, substitutions, and proof. In addition, canon
law furnished some of the rules of marriage and those
concerning legitimation.

A number of changes brought about by the Revolution
were maintained; in a sense they portray the general spirit
of the Code. The complete secularization of the law is illus-
trated in the treatment of marriage which was brought un-
der the control of the civil authorities. Likewise the spirit
of equality which during the Revolution had resulted in the
abolition of the entire feudal hierarchy was conserved. Fi-
nally, in forbidding or confining within strict limits agree-
ments tending to restrict alienability of land, the free dis-
position of property was favored.

It is generally agreed that the outstanding qualities of Qualities
the code are its unity, precision, and clarity. Its unity is .
due to the fact that its preparation was placed in the
hands of a very small group of men. Its precision and
clarity have not been surpassed in either the other codes
or subsequent legislation.

Critics of the Code have in the main directed their atten-
tion to its general arrangement and its omissions. The gen-
eral arrangement has been criticized as being artificial and
without scientific basis. It is to be noted, however, that
Professor Planiol in his elementary treatise does not con-
sider this to be a serious defect. A number of subjects
which should naturally be included are omitted, in some
instances, because they represent modern development of
the law. This is notably true of corporations and indus-
trial, literary, and artistic property, none of which are spe-
cifically touched upon.

The official name of the Civil code has been changed from
time to time. It was first published as the Code cwil des
Francais, As a result of the law of September 9, 1807, its
name was changed to Code Napoleon, Subsequently upon
the Restoration the original name was restored, and finally
a decree of March 27, 1852, reestablished the designation
Code Napoleon, This decree has never been officially abro-
gated, but since 1870 through usage the code has been cited
and referred to under the name Code civil.

74

GUIDE TO THE LAW OF FEANCE

Official
Editions

Annotated
Editions

There have been three oflSeial editions. The first is that
of its promulgation in 1804. The second was the result
of a law of September 3, 1807, the object of which was,
principally, to harmonize the terminology of the Code with
the imperial regime which followed the Consulate. Such
words as consul^ republique and nation were replaced by
empereur^ ertypire^ and JStc^, The third and last official
edition was published in 1816. The changes made, like
most of those in the second edition, are of political impor-
tance only and explain the presence of the terms, r(d^ le
roywume^ and procmreur de roi in the Code as it now exists.

Private editions vary in size and manner of treatment.
The large annotated editions such as Dalloz,^* Fuzier-Her-
man,^^ and Sirey^^ represent remarkable work. The first
edition of the Code civU annote de DalloB was published
in three volumes between 1873 and 1875. It was followed
by a second edition, forming five volumes, which were pub-
lished between 1900 and 1907 and are annotated to both
jurisprudence and doctrine. A supplement was published
in 1921 under the title cddition^ and since then shorter sup-
plements have appeared approximately every three years.
The annotated Code of Fuzier-Herman, which follows the
general plan of that of Dalloz and consists of four volumes,
was published between 1882 and 1898. A supplement of
two volumes appeared between 1900 and 1906. That cited
under the name Sirey, now in its fifth edition, was published
in parts between 1911 and 1920. It should be noted that it
is not published by the RecueU Sirey but by Qodde.

In addition to the larger works just mentioned excellent
pocket editions with short annotations to subsequent legis-
lation and jurisprudence are published by the same pub-

•*DaUo!5. Nouveau Code ciTil anBot§ et expUqu^ d'apr^s la ji;u:is-
prudence et la doctrine. Paris, Dalloz, 1900-1907. 5 v. Additions
1921. Suppltoents 19i24, 1927.

•* Fuzier-Herman, E., et Darras, A. Code civil annote. Paris, L.
Larose, 1885-98. 4 v. Supplement par Th. Griffond. Paris, 1900-06.
2 V.

''^ Sirey, J. Code civil amsot^ 5, M. Paris, Mardiial et Ge4de,
1911-20, 4 V.

CIVIL CX)DE 75

lishers. That published by Dalloz,^^ part of the Petite
collecUon Dalloz^ seems to be the best. Revised annually,
it sets forth in full all legislation pertaining to and modify-
ing provisions of the Code. The similar publication of the
Reeueil Sirey^ ^^ part of the collection of Petits codes Car-
pentier^ is also important.

There are a number of English translations. The latest '';^^''^^^'

tions

are those of Henry Cachard,^® published in 1895, and Black-
wood Wright,^ published in 1908. The former has the repu-
tation of being the better translation.

The subsequent growth of French civil law can not be dis ^^^veiop-
cussed in detail here. Attention should, however, be called civii Law
to a number of scholarly studies of the later evolution of
legal institutions, which are well worth consideration.

The promulgation of the Civil code in France and the sub-
sequent agitation in favor of codification in Germany gave
birth to the German historical school of jurisprudence, an
important doctrine of which was that codification arrests
the full development of the law which can only result from
a slow process of evolution. In an excellent article in the
Livre du centenaire {infra) Professor Saleilles, of Paris,
after referring to Savigny's Of the vocation of our age for
legislation and. jurisprudence^^ develops the theory that the
Civil code, in laying down general principles instead of
attempting minute regulation of details, made it possible
for the judge, with the freedom of interpretation provided
for in the Code, to adapt the law to changing economic and
social conditions.

Other writers have developed in greater detail the changes
in the law since the promulgation of the Code. Professor

*' DaUoz. Code cml annote. 29 4d. Paris, DaUoz, 1928-29. 976 p.

"^ Carpentier, A. & E. Code civil. Paris, Recuel Sirey, 1927.
1075 p.

"*Cachard, Henry. The French Civil code, with the various
amendments thereto as in force on March 15, 1895. London, Stevens
and sons, 1895. 611 p.

* Wright, E. B. The French Civil code (as amended up to 1906)
translated into English, with notes explanatory and historical, as
comparative references to English law. London, Stevens and sons,
1908. 480 p.

" See Philosophy of law, p. 37, note 80.
49926°-~31 6

76 GUIDE TO THE LAW OF FRANCE

Charmont of Montpellier in Les transfarftiatkms dv, droit
civil ^ discusses the evolution of the law, as well as the need
for development, in such particular fields as the family,
marriage, the rights of married women, the position of
natural children, property, and the extension of the basis
of responsibility, particularly with reference to the modern
doctrine of division of risk. Professor Duguit, of Bordeaux,
in a series of interesting lectures delivered in Argentina and
later published under the title Les transformations du droit
prive ^ deals with the general trend, not only in France, but
in other countries as well, from the idealism and individual-
ism of the early part of the last century to present-day
realism and socialism.

Translations of portions of both works appea.r in Progress
of continental law^ vol. xi of the Continental legal his-
tory series. The same volume contains translations of chap-
ters, relating to the same subject, taken from Dr. Alvarez'
Une nouvelle conception des etndes jwHdiques.^

Another Avork of importance, dealing particularly with
the inadequacy of the Civil code to meet modern social
problems, is Professor Morin's Les revoltes des faits^ Men-
tion should also be made of a series of articles contained in
Les transfoTwntions du droit^ published on the occasion of
the fiftieth anniversary of the Societe de legislation cotyi-
paree. This important collection, in addition to a number
of articles devoted to such subjects as social legislation, the
development of administrative jurisprudence, copyright,
maritime legislation, and legislative changes in various
countries during the preceding fifty years, includes an inter-

^ Charmont, J. Les transformations du droit civil. Paris, Colin,
1912. 294 p.

* See Philosophy of law, p. 43, note 1.

''Alvarez, A. Une nouvelle conception des etudes juridiques et de
la codification du droit civil. Paris, Pichon et Durand-Auzias, 1904.
234 p.

^Morin, G. La r^volte des faits contre le Code. Paris, Grasset,
1920. 254 p.

^ Les transformations du droit dans les principaux pays depuis cin-
quante ans (1869-1919) Livre du cinquantaire de la legislation com-
par^e. Paris, Libralrie generate de droit et de jurisprudence, 1923.
2 V.

CIVIL CODE 77

esting and scholarly dissertation on the growth of French
law through legislation and the influence of doctrine and
jurisprudence, written by Professor Capitant, of the Paris
law faculty.

Before leaving the general subject of the evolution of
civil law since the promulgation of the Code, reference should
also be made to the extended discussion of legislative, juris-
prudential, and doctrinal changes since 1804, contained in
the first volume of the supplement to Baudry-Lacantinerie.
Professor Bonnecase,^ of Bordeaux, whose work on the nine-
teenth century school of interpreters of the Code will be
referred to presently, develops in detail not only legislative
changes in particular fields but also the effect of the present
conception of the role of legal writers on present tendencies
in doctrine and jurisprudence.

At the time of the promulgation of the Code it was not Treatises
uncommonly thought that the text of the law would suffice ^^^^^
for the solution of legal problems. It was not long, how-
ever, before a number of treatises and commentaries devoted
to civil law made their appearance ; these with others, which
followed during the course of the last century, represent a
product of juristic labors which is remarkable both for its
quantity and quality.

The general characteristics of the nineteenth century
writers on civil law have received extensive treatment from
the pens of latter-day writers. Short accounts of the de-
velopment of legal writing are contained in the elementary
treatises on civil law, such as those of Professors Planiol,
Colin, and Capitant, and Baudry-Lacantinerie. Perhaps
the best extensive discussions of the general trend of the
doctrine of the last century are to be found in an article in
the Livre du cerdenaire^ Les interpr*etes du Code eivil^ by
Professors Charmont and Chausse, and a monograph by
Professor Bonnecase entitled '^ Uecole de VexegeseP^ To

* Bonnecase, J. Supplement au traite theorique et pratique de droit
civil de Baudry-Lacantinerie. Paris, Recueil Sirey, 1924-30. 5 v.
See Baudry-Lacantinerie, iwfrd.

9 Bonnecase, J. L'ecole de I'ex^g^se en droit civil. Les traits dis-
tinctifs de sa doctrine et de ses methodes d'aprds la profession de
foi defe plus illustres representants. 2. €d. Paris, de Boccard, 1924.
285 p.

78 GUIDE TO THE LAW OF FSANCE

paraphrase Professor Boimecase, the outstanding trait of
the earlier generations of commentators was the cult of the
text and an abounding faith in its proper virtue. Labor-
ing under the illusion of the all sufficiency of the text of the
law and disregarding defects and omissions they attempted
to ascertain through a process of deductive reasoning based
on the text itself or the general spirit of the code, the in-
tention of the legislator. Judged by modern standards this
method of treatment is insufficient; but it served a useful
purpose, namely, that of deriving from the written law its
full import.

Present-day writers follow a bolder and more practical
plan. They no longer regard the textual rule as immutable
and all sufficient but look upon the role of the jurist as in-
cluding that of pointing out defects and urging reforms.

At present the earlier treatises and commentaries of the
nineteenth century school of interpreters enjoy only a rela-
tive authority. Their value is in the main historical and
for that reason the more important only will be mentioned
before passing on to several treatises of the last century
which are still regarded as being of practical value.

We find among the first to appear that of TouUier,^^ pro-
fessor at Rennes, who produced an incomplete work covering
the first 1,851 articles of the code. It was later completed
hj Duvergier. The publication of the first edition began
in 1811, and the sixth and last edition was published be-
tween 1846 and 1848. The best part is that dealing with
obligations.

The first long and complete treatise devoted to civil law is
that of Duranton, dean of the Paris faculty, which made
its appearance in 1825 under the title Oours de droit dvUJ^^
The last and fourth edition was published in 1844.

*^TouUier, C. Le droit civU fran^ais, suivant Vordre du Code, con-
tinue et complete par J. B. Duvergier. 6. 6d. Paris, CotiUon, 1846-^8.
7 T. in 14.

"Durante, A. CJours de droit frangais suivant le Code civil. 4.
M. Paris, Thorel, 1844. 22 v.

CIVIL CODE 79

Other general works of about the same time are those of
Troplong ^^ and Marcade and Pont.^^ That of the former,
which is seldom cited at present, is sometimes referred to as
" the novel of the law." The Explication theorique et prati-
que of Marcade and Pont began to appear in 1842 and passed
through several editions. For a time it enjoyed a certain
popularity in France and in addition is said to have exer-
cised considerable influence on the compilation of the Ru-
manian Code.

There are four works produced by the nineteenth century
school of interpreters which are of sufficient importance to
merit more than cursory mention.

Of these the more important are the works of Aubry and
Eau and Demolombe.

The Cours de droit civU^^ by Aubry and Eau is often
called the chef d/oefumre of French juridical science of the
last century. It had as its basic method that of a German
manual published in 1808 by Charles Solomon Zachariae/^
at the time professor at Heidelberg. This manual was imi-
tated by Aubry and Rau, then professors of law at Stras-
bourg and later counsellors at the Court of Cassation. Little
by little the original German work was revised and added to,
to the point where it became the personal product of the
authors, the first edition appearing in five volumes between
1838 and 1847. The treatise is remarkable for its original
plan, its rigorous method and concise statement of conclu-

" Troplong, R. Le droit civil explique suivant I'ordre des articles
du code. Paris, Hingray, 27 v. The different parts were pubUshed
in several separate editions between 1845 and 1872. They are sold
separately.

"Marcade et Pont Explication theorique et pratique du Code
civil. Paris, Delamotte; Recueil Sirey. 13 v. The different parts
were published separately in second, third, seventh, and eighth edi-
tions between 1874 and 1894.

"Aubry et Rau. Cours de droit civil frangais, d'apr^s la m^thode
de Zachariae. 5. ^d. rev. par Rau, Falcimaigne, et Gault. Paris, Mar-
chal et BiUard, 1897-1922. 12 v.

" Zacharia von Lingenthal, K. Le droit civil frangais, tr. de I'alle-
mand sur la 6. ^d. par G. Masse et Ch. Verg6. Paris, Durand, 1854-
60. 5 V.

80 GUIDE TO THE LAW OF FRANCE

sions. Its plan was revolutionary in that the subject mat-
ter, unlike that of the preceding commentaries, was arranged
independently of the order of the Code. The care taken in
the statement of conclusions has not been exceeded in any of
the other general works on French civil law. A fifth edition,
representing the combined work of G. Eau, Falcimaigne, and
Bartin, was terminated in 1922. This last edition, which
contains all the qualities of the work of the original authors,
covers the entire field of civil law in concise form and with
that clarity of style for which French writers are noted.

Demolombe, professor and dean of the faculty of Caen,
in his Gcmrs de Code Napoleon ^^ left an uncompleted work
which, in spite of its 31 volumes, only covers the first 1,386
articles of the Code. The work itself consists of a series
of treatises which follow closely the order of the Code. The
first volume appeared in 1844 and with most of those which
followed, has gone through a sixth edition. Professor
Guillouard,^^ also of Caen, undertook the publication of a
series of treatises designed to complete the work of Demo-
lombe. The Cours de Code Napoleon is noted for quali-
ties quite different from those which characterize the
treatise of Aubry and Rau. Less precise and methodical,
the author reasoned less closely from the text, being more
inspired by the practical needs of the profession. The
treatise is sometimes criticized on the ground that it be-
came too voluminous and failed to take into account the
progress of the law.

** Demolombe, C. Cours de Code Napoleon. Paris, Lahure. 32 v.
Vols. 11 and 12 on servitudes were published in a 7th ed. in 1882;
vols. 24-Sl on obligations in a 5th ed. in 1880-95 ; vol. 32 «on divorce,
by Gr^vin, in 1896, and the other volumes in a 6th ed. in 1880-82.

"Guillouard, L. Droit civil. Paris, Pedone-Lauriel. 19 v. Guil-
louard's publications comprise the following treatises : Traits du pr^t,
2. ed., 1893; Traits du eontrat de mariage, 3. M., 1894-96, 4 v.;
Trait^s de la vente et de I'echange, 3. ed. 1902-04, 2 v. ; Traits du
eontrat de louage, 3. ed. 1891, 2 v. ; Trait4s du cautionnement & des
transactions, 2. ed., 1895 ; Traites des contrats aleatoires & du mandat,
2. 6d., 1894; Traits du eontrat de soci^t4, 2. ^d., 1892; Traits du
nantissement, 2. ^d., 1896; Traits des privileges & hypothdques, 1897-
1900, 4 V. ; Traite de la prescription, 2. ed., 1901-02, 2 v.

CIVIL CODE 81

The two other works of the nineteenth century school
of interpreters, those of Demante and Colmet de Santerre
and of Laurent, though still consulted, are of less impor-
tance.

The former, Cours analytique de Code civil^^^ was begun
by Demante, professor at the Paris faculty. The portion
dealing with the articles of the Code subsequent to article
980 was completed by Colmet de Santerre. The first edi-
tion appeared between 1849 and 1873. The different parts
have been pubhshed in second and third editions.

The latter, Principes de droit civil frangais^^ is a Belgian
work by Laurent, professor of law at Ghent, which failed to
obtain in France the same degree of success as other nine-
teenth century treatises. Although worth consulting, it is
not always a safe guide. Furthermore, marking as it does
the high-water mark of the theory of the all sufficiency of
the text with its resulting rigidity of interpretation, it is
less adaptable to the needs of practitioners.

Within the last few years two new general works, those
of Baudry-Lacantinerie and Planiol and Kipert, have begun
to supplant their predecessors, excepting, of course, Aubry
and Eau, whose treatise is still regarded as among the first
authorities on civil law.

Of all the commentaries or treatises devoted to civil law,
probably the Traite theorique et pratique de droit dmt^^
cited under the name Baudry-Lacantinerie, is the best known
in America. The work itself marks a radical change in
method. Instead of representing the efforts of one or two

"Demante, A., et Colmet de Santerre. Cours analytique de Code
civil. Paris, Plon; Chevalier-Marescq. 9 v. Vols. 1 and 2 on per-
sons, were published in a 3d ed. in 1895-96; the others in a 2d ed.
in 1883-89.

*® Laurent, F. Principes de droit civil frangais. 5. 6d. BruxeUes,
Bruylant, 1893. 33 v.

Supplement par Siville. Bruxelles, Bruylant ; Paris, Chevalier-Ma-
rescq, 1898-1903. 8 V.

*** Baudry-Lacantinerie, J. Traits th§orique et pratique de droit
civil. 3. ed. Vol. 28. 4. €d. Paris, Recueil Sirey, 1905-09. Vol.
28, 1924. 29 v., including index.

Bonnecase, J. Supplement Paris, Recueil Sirey, 1924-30. 5 v.

82 GUIDE TO THE LAW OF FRANCE

men its publication was begun in 1895 in the form of sep-
arate treatises under the direction of Baudry-Iraeantinerie,
dean of the Bordeaux faculty, with the collaboration of a
number of eminent professors of the different faculties. At
present the first twenty-seven volumes have gone through
three editions and the twenty-eighth through four. A 4-
volume Supplement, by Professor Bonnecase, also of the Bor-
deaux faculty, has been recently published. Due to the im-
portance of the work time should be taken to indicate its
general content. Five volumes are devoted to persons. One
treats of property. The law of succession is dealt with in
three volumes. Two volmnes are devoted to gifts inter vivos
and testamentary dispositions. Contracts or conventional
obligations form the subject matter of four volumes. Three
volumes deal with the marriage contract. One volume deals
with sales. The contract of hiring is dealt with in three
volumes. Partnerships, loans, and deposits form the sub-
ject matter of one volume. Aleatory contracts, agency, and
suretyship are dealt with in a single volume. Three vol-
umes deal with pledges, liens, and mortgages, and prescrip-
tion forms the subject matter of another and last volume.

The important treatise of Professors Planiol and Bipert,
Traits fratique de droit civil frangais^^ when completed will
contain about 13 volumes, of which several have already ap-
peared. Its general plan is the same as that of Baudry-La-
cantinerie, it being published under the direction of Profes-
sors Planiol and Kipert, both of Pilaris, with the collabora-
tion of a number of important jurists. It is highly recom-
mended because of its practical value.

Critical appreciation is largely a question of individual
taste, but it can be safely said that the two works just men-
tioned with that of Aubry and Eau represent the leading
present-day French authorities on civil law.

"^ Planiol and Ripert with the collaboration of Nast, Morel, Pieard,
Rouast, Cassin, Becque, Hamel, Savatier, Maury, Vialleton, Esmein,
Radouant, and Trasbot. Traits pratique de droit civU frangais.
Paris, Librairie g§n6rale de droit et de jurisprudenoe. 1925-28.
The parts already published comprise: v. 1, Les personnesj v. 2,
La famine; v. 3, Jjm biens; v. $ and ^ Les regimes matrimc»ilamx ;
V. 12, Stir^t^s r^elles et hypoth^ques. The complete collection will
comprise about 13 volumes.

CIVIL CODE 83

Two other comparatively recent treatises, while not as
important, deserve to be noticed — ^the Oommerdaire theorique
et pratique ^^ by Hue, formerly professor at Toulouse, and
the uncompleted Gouts de droit civil frangais^^ by Charles
Beudant, formerly dean of the Paris faculty. Published by
his son Robert Beudant, professor of law at the University
of Grenoble, the first volume of the latter work appeared
in 1896.

In addition to the general treatises on civil law there are f i^^"-

^^ , , , tary Trea-

several elementary works designed primarily for the use of tises
students, but which should be of interest as well as of prac-
tical use to those who are not accustomed to the intricacies
of a foreign legal system. Of these the more popular are
the scholarly works of Professors Colin and Capitant ^^ and
Professor Planiol.^^ That of Professor Baudry-Lacantin-
erie,^^ while not now as popular as the others, is well worth
consulting. Mention should be made of the fact that the
first volume of a student text by Professor Josserand of
Lyon has just been published.^^^ When completed it will
comprise three volumes.

Before going on to the more important periodicals, men-
tion should again be made at this point of the LiA)re du cen-
tenaire^^'' already referred to from time to time in the fore-
going pages. Published on the occasion of the hundredth
anniversary of the code, it contains a number of valuable
articles dealing with its adoption, subsequent history, and
influence.

^ Hue, T. Commentaire theorique & pratique du Code civil. Paris,
F. Pichon, 1892-1903. 15 v.

^' Beudant, C. Cours de droit civil frangais. Paris, Rousseau, 1896-
1908. 7 V. including Introduction. Explication du titre pr^liminaire.

^ Colin et Capitant. Cours ^l^mentaire de droit civil. 5 6d. Paris,
Dalloz, 1927-29. 3 v.

^Planiol, M. Revis^ par Ripert, G. Trait6 §14mentaire de droit
civil. 10. §d. V. 1, 11. M, Paris, Librairie g^n^rale de droit et de
jurisprudence, 192^28. 3 v.

^ Baudry-Lacantinerie, G. Precis de droit civil. Rev. par P. Guyot.
13. M. V. 1, 14. M. Paris, Recueil Sirey, 1925-27. 3 v.

^** Josserand, L. Cours de droit civil positif frangais. Paris, Sirey,
1929. V. 1, 1015 p.

'^^Le code civil. Livre du centenaire, pub. par la Soci§t4 d'^tudes
l^gislatifs. Paris, Rousseau, 1904. 2 v.

84 GUIDE TO THE LAW OF FRANCE

No discussion of the literature of French civil law would
be complete without some reference to the important periodi-
cals devoted to a study of various legal problems falling
within its scope. While several of those about to be re-
ferred to are general in their scope, due to the fact that they
are preponderately devoted to civil law, it is deemed advis-
able to mention them at this point.

The outstanding periodical is the Revue trimestrielle de
droit civil^ which was founded by Professors Esmein, Mas*
sigli, Saleilles, and Wahl, the first number appearing in
1902. To paraphrase Professor Planiol, it is an excellent
working tool for those who have a serious interest in the
civil law.

Another extremely valuable review is the Revue critique
de legislation et de jurisprudence^ which is the result of the
fusion in 1853 of two older reviews — Revue de legislation et
de jujrisprudence^ better known under the name Revue
IVolowshi^ the name of one of its founders, and the Revue
critique de jurisprudence. Suspended during the war, it
began to reappear in 1924 under the direction of Professors
Capitant and Ripert.

Excellent articles pertaining to historical phases of civil
law appear in the Revue historique de droit frangah et
Stranger^ already mentioned in the chapter on legal history.

Two other reviews, Recueil d^e VAcadcTnie de legislation de
Toulouse^ publication of which began in 1852, and Revue
ghierale de droit^ de la legislation et de la jurisprudence^ the
first volume of which appeared in 1877, are sometimes cited,
but are usualty considered to be inferior to those already
mentioned. Mention should also be made of the Revue
pratique de droit frangais^ publication of which began in
1856, and the Semaine juridiqus^ founded in 1926.

Reference is often made to two older publications, Themis
and the Revue Foelix, At one time very important, they
are now largely of historical value. The first appeared be-
tween 1820 and 1829. The second, published successively
after 1834 under the titles Revue frangaise et etrangere de
legislation and Revue de droit frangais et Stranger^ ceased
publication in 1850.

CIVIL CODE 85

The general treatises on civil law cover thoroughly the^^^^^°°*
entire field, but there are a number of works devoted to cJode
particular subjects which because of their importance should
be discussed.

Although the first book of the Civil code is entitled Des ^i"^^,.
personnes^ juristic persons are not specifically dealt with. sonaUty
The legal nature of personality forms, however, an impor-
tant part of most of the treatises on civil and commercial
law and is also taken up in some of the works on public
law in connection with discussions of the personality of the
state. In addition, it has received extensive individual
treatment by a number of legal scholars and has been the
subject matter of some important and scholarly doctoral dis-
sertations. The term " juristic person " {personne juri-
dique or personne morale) is applied in French legal lit-
erature to establishments founded for public purposes, such
as hospitals, educational and charitable institutions, as well
as to ordinary associations of individuals.

Some preliminary idea of various continental views of
legal personality may be obtained from a series of articles
published ii> the Harvard Law Review by Arthur Machen
in 1911 under the title Corporate personality (v. 24, pp.
253 and 344).

During the greater part of the last century the traditional
French point of view was that juristic persons are ficti-
tious beings conceived by the legislator to facilitate the
functions of associations and institutions created by men.
Under this theory, which is similar to that of the great Ger-
man jurist, Savigny, they only possess such rights as are
accorded them by law, and, unlike physical persons, are
not capable of possessing natural rights. Of the various
writers on civil law, it was Laurent who carried the theory
of legal fiction to its ultimate extreme (v. 1, p. 367 et seq,).

From a theory which regards juristic personality as a
fiction of the law, it is an easy step to a second which denies
its existence. Under this latter theory the only real persons
who are capable of possessing rights are those who form the
association. This second theory was first extensively de-
veloped in French by Van den Heuvel, a Belgian, in his

86 GUIDE TO THE LAW OF FRANCE

De la situation leg<£Le des associations.'^^ It later formed
the basis of a more important work, Les personnes Tnorcdes?^
by Professor Vareilles-Sommieres, dean of the Catholic Law
School of Lille, who regarded the fiction of personality as
useful only for the purpose of describing in convenient lan-
guage a complicated situation or state of affairs.

The outstanding scholarly French work on legal person-
ality is that of Professor Michoud, of the Grenoble faculty,
who besides giving an excellent account of the various
theories, and discussing a number of important questions
relating to juristic persons, develops another theory, that
of the reality of personality, of which Gierke was the leading
German exponent. The thesis of Professor Michoud is that
the juristic person is not a fiction nor an artifice to describe
a collection of individuals but a reality capable of enjoying
rights. Whether it does or not enjoy such rights depends
on the acceptance of its personality by the law. Professor
Michoud's La theorie de la personnalite morale ^^ was re-
cently published in a second edition. Another important
work is that of the eminent Professor Saleilles, De la person-
nalite jvHdique^ histoire et theories.^^ Professor Saleilles,
before his unfortunate death a member of the Paris law
faculty, was a partisan of the theory of reality of juristic
personality.

In connection with works developing various theories of
legal personality attention should be called to Professor
Planiol's theory of collective ownership which is set forth in
his Traits eUmentcdre (v. 1, p. 984) .

The large number of excellent theses which deserve to be
mentioned can not be discussed in detail. Of those relating
to various questions concerning the personality of religious,

^ Van den Heuvel. De la situation legale des associations sans but
lucratif en France et en Belgique. 2. ed. Bruxelles, Larcier; Paris,
Pedone-Lauriel, 1884. 3 p. 1., [iii]-iv, [5]-358 p.

^ Vareilles-Sommi^res de. Les personnes morales. Reprint. Paris,
Pichon, 1919. 683 p.

'* Michoud, L. La th6orie de la personnalit^ morale et son applica-
tion au droit frangais. 2. ed., by Trotobas. Paris, F. Pichon et
Durand-Auzias, 1924. 2 v.

^^ Saleilles, R. De la personnalite juridique. Histoire et theories.
2. €d. Paris, Rousseau, 1922. 684 p.

CIVIL cca)E 87

charitable, and educational foundations the more impor-
tant include Trachy's Des fondations^^^ Ravier du M^ny's
Le Gcmirat de fcmdation^^ Geouffre de Lapradelle's Des
fcmdMions^^ Coquet's Les foridations ^^ and Tronquoy's No-
tion jwndique interrhaticmale de la foridc^wrb,^^ An excel-
lent thesis giving the various theories of juristic personality
is that of Negulesco, Le frohleTne juridique de la person-
naUte moraleP Mention should also be made of Eene
Adenis' Les associatioTis a hut nan liwratif^^ and Parthe-
niu's Le droit social sur les ohoses,^^ Several theses also
treat the problem of juristic personality from the point of
view of capacity and penal responsibility. Of the former,
the more important are those of Dedier Eousse, Capacdte
juridique des msodations^^^ and of Epinay, CcDpaxMe jturi-
dique des (zssooiations sans hut lucratif,^^ Of the latter the
best is that of Mestre, now professor of law at Paris, Les
pei'sonnes morales et lev/r responsahilite pencde.^'^

The outstanding works dealing with legal personality in
connection with the application of the different theories in
the field of public law will be discussed in a subsequent
chapter.

""Truchy, C. Des fondations. Paris, 1888. 347 p.

^^Ravier dii Magny, P. Le contrat de fondation. Paris, Larose,
1894. 266 p.

^Geouffre de Lapradelle, A. Theorie et pratique des fondations
perp^tueUes. Paris, Giard et Briere, 1895. 476 p.

^Coquet, E. Les fondations privees d'apr^s la jurisprudence.
Paris, Larose et Tenin, 1908. 299 p.

^ Tronquoy, M. De la notion juridique Internationale de la fonda-
tion. Paris, Kousseau, 1908. 836 p.

^^ Negulesco, D. Le probleme juridique de la personnalite morale
et son application aux societes civiles et commerciales. Paris, Rous-
seau, 1900. 227 p.

^"^ Adenis, R. Les associations a but non-lucratif et le droit de suc-
cession. Paris, 1902. 245 p.

^Partheniu, 0. Le droit social sur les choses, essai sur la nature
des propriet^s collectives. Paris, Giard, 1908. 220 p.

*®Rousse. De la capacity juridique des associations en droit civil
frangais. Paris, Rousseau, 1897. 317 p.

** Epinay, J. De la capacity juridique des associations formees
sans but lucratif. Lille, 1897. 619 p.

""Mestre, A. Les personnes morales et le probleme de leur respon-
sabilit6 p^nale. Paris, Rousseau, 1899. 360 p.

Marriage

88 GUIDE TO THE LAW OF FRANCE

Before leaving the subject, attention should also be called
to an excellent short discussion of legal personality, with
copious bibliographic notes, contained in Professor Capi-
tant's Irvtrodajbction a Vetvde du droit civil ^^ (pp. 193 et seq,) .

The French law of marriage received extensive treatment
in English in a work by Kelly ,^* formerly an American
lawyer practicing in Paris. Unfortunately Mr. Kelly's
book has not been recently revised and fails to take into
account a number of legislative changes which have taken
place within the past few years. Marriage and divorce in
France were also discussed by Mr. Charles Loeb, an Ameri-
can lawyer practicing in Paris, in the Virginia Law Kegis-
ter of 1913 (v. 18, p. 801, also 45 Chicago Legal News, 248).
The best French discussions are those contained in the better
French treatises on civil law. The latest legislative develop-
ments are fully dealt with in the Covn^^s eUmentaire of Colin
and Capitant.

Eecent legislation concerning the preliminary formalities
surrounding the celebration of marriage is of particular
interest. As already indicated, the Code completely secu-
larized marriage. The only ceremony having legal effect is
that before the proper civil authorities. In addition, al-
though the age of majority for males was fixed at 21 under
the revolutionary regime, the Code placed it at 25 for mar-
riage with the result that men below that age could not
marry without the consent of their parents. The legal age
for women was placed at 21. Even after attaining majority,
both men and women were required to go through a compli-
cated procedure in requesting, in case of refusal, through
what were called actes respectumx^ the consent of their par-
ents before the marriage could take place. During the past
few years these provisions, which were thought to be impedi-
ments to the free contraction of marriages and in part re-
sponsible for their diminishing number and the resulting

''Capitant, H. Introduction h I'etude du droit civil. Notions
ggnerales. 4. ed. Paris, Pedone, 1922. 455 p.

'* Kelly, Edmond. Tlie French law of marriage, marriage contracts,
and divorce, and the conflict of laws arising therefrom. 2d ed. rev.
by Bodington. London, Stevens & sons, 1895. 280 p.

CIVIL CODE 89

lowering of the birth rate, have received the special atten-
tion of the legislature. An act of June 21, 1907, did away
with the special age of majority for men, making it possible
for them to marry without the consent of their parents upon
attaining 21. The necessity for consulting the parents after
attaining the age of majority and in case of refusal of con-
sent for resorting to the acte respectueux was in part dealt
with as early as 1896. As a result of the laws of June 21,
1907, April 28, 1923, and February 7, 1924, persons of full
age were almost entirely freed from the formalities required
under the older law. Under the law as it now exists if the
future spouses have passed the age of 25 no formality is
required. Between 21 and 25, if the parents refuse their
consent, the marriage may take place 15 days after notifica-
tion through a notary. If the father and mother disagree
in refusing consent, the marriage may take place at once,
and in case of a second marriage it is never necessary to con-
sult the parents.

More recent legislation (acts of April 8, 1927, and July 17,
1927) has materially modified various provisions of the
Code as to consent of parents to the marriage of minors,
publication of banns, and opposition to the celebration of a
marriage, thus evidencing a tendency toward even greater
liberality. The rules concerning the publication of banns
had also undergone other slight legislative changes as the
result of the law of 1907, already referred to, and a law of
August 9, 1919. At present, although the marriage can not
be celebrated earlier than 10 days after publication, it is no
longer necessary that the banns be published twice nor that
the 10 days include two Sundays.

While the rules relating to capacity and formalities are
contained in the first book of the Civil code (arts. 144 et
seq,)^ the provisions concerning the marriage contract regu-
lating the property relations of the spouses are to be found
in the fifth title of the third book (arts. 1387 et seq,).

It would hardly be within the scope of the present work Mamage
to give a detailed account of the numerous rules of law con- ^^^^^^
cerning the marriage contract. All that can be done is to
point out the principal agreements that the parties may
adopt to govern their future property relations. French law

90 GUIDE TO THE LAW OF FRANCE

specifically recopii2;es four diflferent types of marriage ar-
rangements : Com/rmmaute^ regime sans comrminaMe^ mpara-
turn de hien8^ and regime dotal. La commjwncmie or com-
munity of property is characterized by a common mass of
property belonging to the two spouses which remains un-
divided during the duration of the marriage. The coni-
munity may comprise all or only a part of the property of
the husband and wife, depending on the contract, the latter
type being the more frequent. Community property is
under control of the husband whose powers are almost as
extensive as if he were sole owner. The separate property
of the wife is also administered by the husband, the revenues
falling into the community. Under the second regime there
is no community, the property of each spouse remains sepa-
rate property, but as in the preceding systems, the property
of the wife is under the management of the husband. Under
the regime de la separcution des biens^ or separate property,
there is of course no community or common mass, but the
wife has greater powers of administration than in the second
regime and in addition the revenues from her property be-
long to her. The dotal regime is of Roman origin and in sum
is a regime of separate property. It owes its name to the
presence of a dowry brought by the wife, the revenues of
which, at lea^t, belong to the husband, who may also acquire
title. The property of the wife which is not a part of the
dowry is called paraphernal property.

In the absence of a special marriage contract, under the
terms of article 1400, the parties are presumed to have
adopted the community regime which is regulated by law
and goes under the name regiine legal.

There are a number of individual works on the different
marital regimes which merit attention. Although it was
published in 1894 the Traite dik regim^e de corrnmmmde^^
by L. and A. Merignhac remains the best work on community
property. Separate property received excellent treatment in
a recent thesis by Moissinac, entitled Essai swr la separalion
de Mens. It was republished in 1924 under the title Le con-

^Merignhac, L. et A. Traite du regime de communaute. Paris,
Larose, 1894. 2 v.

CIVIL CODE 91

trat de Taariage de separatioifi des hiens^^ In 1901 the Insti-
tute offered a prize for the best work on the dotal regime.
It was awarded to Professor Eyquem, of the Bordeaux fac-
ulty, whose book, Le regime dotal^ son histoire^ son evolu-
tion^'^ besides giving the jurisprudential development of the
applicable provisions of the Code also contains a history of
the dotal regime. Two other works which are considered to
be very good, received honorable mention, those of Depinay,
Le regime dotal ^ etude historique^ critique et pratique ^^^ and
of Griveau, Le regime dotal en France,^^ An older work
which is sometimes referred to and is still considered to be
of value is that of Jouitou, lEtude sur le systeme du regime
dotd,^""

An important doctrine concerning the marriage contract
is that contained in article 1395 of the code which provides
that no change may be made in the terms of the contract
after marriage. This article has been dealt with in a num-
ber of recent theses of which the more important are those
of Louis Henry, De Vimmutahilite des conventions mMri-
moniales^'^ Spineano; Modifications possibles de Varticle
1395^^^ and Fotino, Etude sur Vimmutahilite des conventions
971/itrifmoniales.^^

Before leaving the general subject of marriage, attention Breach of
should be called to the present jurisprudence concerning ^o^marry
the effect of breach of contract to marry. The maxim gen-

*" Moissinac. Le contrat de mariage de separation de biens. 2. ed.
Paris, Pichon et Durand-Auzias, 1923. 198 p.

*^ Eyquem, A. Le regime dotal son histoire, son Evolution, et ses
transformations au xix siecle. Paris, Marclial et BiUard, 1903, 586 p.

'^^ Depinay, J. Le regime dotal, 6tude historique, critique & pratique.
Paris, Marchal et Billard, 1902. 580 p.

^'^ Griveau, P. Le regime dotal en France. Ses avantages et ses
ineonvenients. Paris, Marchal et Billard, 1902. 175 p.

'^^ Jouitou, L. !Etude sur le systeme du regime dotal sous le code
civil. Paris, Pion; Chevalier-Marescq, 1882-88. 2 v.

"Henry, L. De I'immutabilite des conventions matrimoniaies.
Paris, 1904. 144 p.

"Spineano, A. Modifications possibles de Tarticle 1395 du Code
civil. Paris, 1912. 115 p.

'^Fotino, N. IBtude sur rimmutabilit^ des conventions matrimo-
niaies. Paris, 1917. 213 p.
49926°— 31 ^7

Divorce

92 GUIDE TO THE LAW OF FRANCE

erally employed is Toute pro7nesse de Trmriage est mdle.
However, French courts allow a cause of action under arti-
cle 1382 which provides for redress for damages caused
by a wrong done. The present French doctrine is dealt
with in a very good thesis by Angelesco, De l<i rupture des
promesses de mariage,^^

French divorce legislation has had an interesting history.
The revolutionary regime which regarded marriage as a
civil contract naturally permitted divorce. But the legisla-
tion of 1792 was considered to be too liberal, and, while the
original code made provision for divorce, the number of
causes was materially reduced. Upon the Eestoration di-
vorce was abolished and from 1816 to 1884 French law per-
mitted only judicial separation. In the latter year the in-
stitution was reestablished and a law of that year as modi-
fied in 1886 and 1893 constitutes the existing legislation.

The present grounds for divorce are adultery, conviction
of a felony and, to use the French expressions, exaes and
sevwes and iiijures grayves, Exoes and sevices are practi-
cally synonymous and seem to be the equivalent of "cruelty "
under the laws of many of the states. Translation of the
term injures graves is more difficult, due to the fact that it
has received liberal interpretation from the courts. Under
the present jurisprudence it may be said to include every
serious failure to fulfil a marital duty.

Attention should be called to the fact that the procedure
to be followed in actions for divorce is contained in the
legislation reestablishing the institution which was incor-
porated in entirety in the Civil code. As a result, some-
what illogically, a procedural matter, which should be
dealt with in the Code of procedure, found its way into the
Civil code.

There is surprisingly little modern French literature of
value dealing with divorce as an individual topic. The best
material is that contained in the general treatises on civil
law. Valuable short discussions appear in the elementary
treatises of Planiol and Colin and Capitant. Reference is

"Angelesco, R. De la rupture des promesses de mariage. Paris,
Duchemin, 1914. 146 p.

CIVIL CODE 93

sometimes made to the older works of Coulon^^ and Car-
pentier.^^ Unfortunately neither has been revised, with the
result that they fail to take into account later developments
in jurisprudence. French divorce laws, as well as the con-
flict of laws rules pertaining to divorce, are discussed, how-
ever, in a recent 3-volume Belgian work, Pierard's Divorce
et la ^paration de corps,^'^

Several other subjects included within the scope of the
first book of the Civil code have received special treatment.
Mention should be made of Taudiere's Traite de la pmssance
patemelle ^^ which, as its title indicates, deals with paternal
authority. Legitimation received valuable treatment in
Levy's Traite pratique de l<i legitimation^^ and marital au-
thority is dealt with in two very good theses, Vautorite
rriaritale^^ by Morizot-Thibault, and Uautorite maritale sur
la personne de la ferrwie^'^ by Vialleton. Family law and
the philosophy of the Civil code are the subject matter of a
recent publication by Professor Bonnecase.^^^ A short but
very good English summary of the authority of the husband
and father may be found in a translation of an article by
Charles Sans, Orgofnization of the fainily in Prench law^
which appears in the Juridical Eeview for 1902 (v. 14,
p. 281).

®Coulon, H. Le divorce et la separation de corps: histoire, legis-
lation, debats parlementaires . . . Paris, Marchal et Billard, 1890-97.
5 V.

®^ Carpentier, A. Divorce et separation de corps, doctrine et juris-
prudence. (Extr. Repertoire du droit frangais). Paris, Larose, 1899.
2 V. See also Bates, L. T. The divorce and separation of aliens in
France. New York, Columbia university press, 1929. 334 p.

"Pierard, A. Divorce et separation de corps. Traite theorique et
pratique suivant la legislation, la doctrine et la jurisprudence, beiges
et frangaises et le droit international. Bruxelles, Bruyland; Paris,
Recueil Sirey, 1927-29. 3 v.

''^Taudiere, H. Traite de la puissance paterneUe. Paris, Pedone,
1898. 550 p.

^^ L^vy, E. Traits pratique de la legitimation des enfants naturels,
simples ... 2. ed. Paris, Recueil Sirey, 1926. 346 p.

*^ Morizot-Thibault, C. L'autorit^ maritale (etude critique du Code
civil). Paris, Chevalier-Marescq, 1899. 408 p.

^^ Vialleton, H. L'autorit4 maritale sur la personne de la femme.
]6tude critique de jurisprudence. Montpellier, 1919. 184 p.

''''' Bonnecase, J., La philosophie Code Napoleon appliqu^e au droit
de famille. Nouv. ed. Paris, de Bouard, 1928. 370 p.

94 GUIDE TO THE LAW OF FRANCE

obiiga- Although occupying one of the most important places in

French civil law, the term dbligaiioiv is not defined in the
Code. The usual doctrinal definition is one borrowed from
the Institutes of Justinian, namely, a duty to another to per-
form or refrain from performing some act. Under this
broad definition it includes conventional obligations or con-
tracts, quasi contracts, torts, and quasi delicts, all of which
are dealt with in the Code. The general rules relating to
obligations, such as their effect and extinction, are presented
somewhat haphazardly in articles 1134 to 1303 as a part
of the law of contracts, and quasi contracts and torts receive
comparatively little treatment. This general plan was
taken from Pothier's treatise on obligations and was in turn
borrowed by him from the Institutes of Gains and Justinian.
Modern writers in discussing the law of obligations often
follow a very different and more logical plan. They deal
with the effect, transmission, and extinction of obligations
in general and under the heading sources take up particular
obligations such as those arising out of contract and tort.
There are several important works dealing with obliga-
tions in general. Although somewhat old, the treatise
TMorie et pratique des obligations^^ by Larombiere, pub-
lished in its second and last edition in 1885, is still considered
to be well worth consulting. This treatise is in the nature of
a commentary on the third and fourth titles of the third book
of the Code. Professor Demogue,^^ of the Paris Law School,
is now preparing a general treatise of about eight volumes
of which five dealing with sources have already been pub-
lished. Judging from the volumes which have appeared,
this work when completed will be the most valuable treatise
on obligations. Another important work is that of Buf noir,^*
for more than 30 years a popular professor of the Paris

General
literature

^^ Larombiere, L. Theorie et pratique des obligations, ou Commen-
taire des titres in et iv, livre in du Code civil. Nouv. ^d. Paris,
Pedone-Lauriel, 1885. 7 v.

*^ Demogue, R. Traite des obligations en g^n^ral. Paris, Rousseau,
1923-25. 5 V. When completed the Traits will comprise about eight
volumes.

*^Bufnoir, C. Propri^te et contrat. Theorie des modes d'acquisi-
tion des droits r^els et des sources des obligations. 2. M.. Paris,
Rousseau, 1924. 840 p.

CIVIL CODE 95

Faculty. This latter work consists of a series of lectures
and notes collected by his admirers after his death and in-
cludes in addition to a discussion of sources of obligations
several chapters relating to the acquisition of ownership.

Mention should also be made of an important work on
the theory of obligations as contained in the German code,
TMorie generale de Vobligation dPctyres le projet de Code
civil aUenyiifhd^^ by the late Professor Saleilles, of the Paris
faculty. While not concerned directly with French law
it has had considerable influence with respect to a number
of modern French theories relating to obligations.

In addition, attention should be called to an interesting
philosophical work by Professor Kipert, of the Paris Law
School, La regie morale dans les obligations ^^^ in which the
learned writer deals with the relationship of law and moral-
ity in such fields as immoral contracts, fraud, unjust enrich-
ment, and civil responsibility.

The general questions relative to consensual obligations, ^^"^
such as consent, capacity, and certainty of object, are all
adequately dealt with in different works on obligations or
in their appropriate places in the general treatises on civil
law. Some reference should be made, however, to the lit-
erature dealing with the elusive theorie de la cause which
has received special treatment in several excellent works in
addition to that contained in practically every treatise from
TouUier down to present times. The starting point is the
Civil code which treats of causa in articles 1108, and 1131
to 1134. These articles provide, among other things, that a
contract without a causa or based upon a false or illicit
causa is invalid, but the term itself is not defined. A com-
mon-law lawyer might be tempted to define it in terms of
consideration, but it has a broader meaning. In an impor-
tant work by Professor Capitant, De la cawbse^'^ recently

** SaleiUes, R. lEtude sur la theorie g§n€rale de TobUgation d*apr^s
le premier projet de Code civil pour TEmpire allemand. 3. 6d. Pichon
et Durand-Auzlas, 1914. Reprint 1923. 476 p.

®®Ripert, G. La rSgle morale dans les obligations civiles. Paris,
Librairie g^n^rale de droit & de jurisprudence, 1925. 398 p.

*^ Capitant, H. De la cause des obligations. 3. M. Paris, Dalloz,
1927. 506 p.

9b GUIDE TO THE LAW OF FRANCE

published in a third edition, the learned writer distinguishes
between the purpose of the contract and the motives of the
parties to the contract, the former being the coMsa of the
contract. This conception has been dealt with, with varia-
tions, in a number of recent theses. Tiie more important
are Volonte et camse ^^ by P.-Louis-Lucas, La notion d^
equwalence ^^ by Maury, La cause dans les liberalites '^^ by
Hamel, and La cause dams les actes a titre onererax '^ by
lonasco. Another important thesis is that of Dabin, La
theane de la caicse,'^'^ Attention should be called to the fact
that a number of present-day writers look upon causa as
a useless conception, the mention of which might easily be
dispensed with without causing particular harm to the law
of obligations {ef. Planiol, TraAte elementairc^ v. 2, p. 372
et seq.). In this connection mention should be made of an
article. Causa and eons idcmt ion, in the Yale Law Journal
for 1919 (v. 28, p. 621), in which Professor Lorenzen, after
reviewing civil law authorities, comes to the conclusion that
" there is in reality no definable ' doctrine ' of causaP

An examination of the provisions of the Code relating to
Torts delicts and quasi delicts (arts. 1382 to 1386) reveals sur-
prisingly few provisions concerning the general field of law
which common-law lawyers designate under the term " torts."
Nevertheless, as in the common law, private wrongs occupy
an important place in French law and legal literature. At-
tention has been called to the present tendency of modern

^^Louis-Lucas, P. Volonte et cause. Etude sur le role respectif
des elements generateurs du lien obligatoire en droit prive. Paris,
Recuen Sirey, 1918. 320 p.

*® Maury, J. Essai sur le r61e de la notion d'^quivalence en droit
civil frangais. Paris, Jouve, 1920. 2 v.

'^ Hamel, J. La notion de cause dans les liberalites. Etude de la
jurisprudence frangais et recherche d'une definition. Paris, Recuei!
Sirey, 1920. 392 p.

'* lonasco, T. R. L'evolution de la notion de cause dans les con-
ventions k titre on^reux. Paris, Les Presses Universitaires de
France, 1923. 189 p.

'^^ Dabin, J. La theorie de la cause, ifitude d'histoire et de juris-
prudence. Paris, Recueil Sirey; Bruxelles, P. Van Fleteren, 1919.
334 p.

CIVIL CODE 97

writers to deal with torts as a part of sources of obligations.
This plan is followed by Professor Demogue, who deals ex-
tensively with torts in his general work on obligations. Pro-
fessor Demogue is also the author of an earlier work on torts,
De la reparation eivile des delits^^ and has written two ar-
ticles for American reviews — Faulty rish^ and apportionment
of rish^ 15 Illinois Law Review 369, and Validity of the
theory of compensatory damages^ 27 Yale Law Journal 585.
In addition delictual responsibility received important treat-
ment in Sourdat's Traite general de la responsahilite^^ pub-
lished in a sixth edition in 1911.

Attention might also be called here to a text on civil re-
sponsibility, RespoThsdbilite civile^^ published by Professor
Lalou in the early part of 1927. This Avork, devoted prin-
cipally to delictual responsibility, deals with the general
principles of liability. In addition, Professor Lalou dis-
cusses responsibility for one's own acts, for acts of another,
including acts of minor children, and for damages caused by
animals and inanimate objects. He also gives some discussion
of the Workmen's compensation act and stat^ responsibility.

An interesting evolution in civil responsibility is to be
found in the development of liability for, to put it some-
what paradoxically, an illegitimate exercise of a so-called
legal right or privilege {abus des droits). The general
problems arising out of abuse — similar to those raised in
the spite-fence cases, Allen v. Flood (Law reports, Appeals,
1, 1898), and Tuttle v. Buck (107 Minn. 145, 1909), in Eng-
land and this country — are not infrequently dealt with in
works on civil law. An excellent work specially devoted to
the subject is V esprit des droits ^^ by Professor Jossetand,
dean of the Lyon Law School. French doctrines are also

" Demogue, R. De la reparation civile des delits (ifitudes de droit
et de legislation). Paris, Rousseau, 1898. 366 p.

'^ Sourdat, A. Traite general de la responsabilite ou de Taction en
dommages inter§ts en dehors des contrats ... 6. ^d., rev. par. L.
Sourdat. Paris, Marchal et BiUard, 1911. 2 v.

^^ Lalou, H. La responsabilite civile. (Principes 61ementaires et
applications pratiques.) Paris, DaUoz, 1927. 479 p.

'^ Josserand, C. De I'esprit des droits et de leur relativity. Tbeorie
dite de Tabus des droits. Paris, Dalloz, 1927. 426 p.

Property
Possession

98 GUIDE TO THE LAW OF FRANCE

dealt with in a short but instructive article by M. S. Amos
which appears in the Journal of the Society of Compara-
tive Legislation for 1900 (p. 453 et seq,).

Various other individual problems relating to wrongs
have received excellent treatment in a large number of
theses, of which only a few of the more recent can be
mentioned here. Of those dealing with the elements of
delictual responsibility, particularly with reference to fault,
probably the best are Fromageot's De la faute coinine source
de la resfonsabilite^'^ Bosc's Essai sur les elements consti-
tutifs du delit civil^^^ Degand's La faute^^ Bettremieux'
Essai Tdstorique et critique sur le fondeTnent de la responsa-
hilite civile^^^ Legal's De la 'iiegligence et de Vinifr-vAence^'^
Meignie's Responsabilite et contrat^'^ and Triandafil's Videe
de faute et Videe de risque?^ Mention should also be made
of two interesting theses on causation, Guex' La relation de
cause a effet ^* and Marteau's La causalitS dans la responsa-
hilite civile.^^ The evolution of civil responsibility is dealt
with in Muguet's Videe de responsabilite civile^ son evo-
lution,^^

There is no general work of importance on property, but
the entire subject is adequately dealt with in the treatises

" Fromageot, H. De la faute comme source de la responsabUit§ en
droit prive. Paris, Rousseau, 1891. 276 p.

'^ Bosc, J. Essai sur les ^l^ments constitutif s du delit civil. Paris,
Rousseau, 1901. 273 p.

" Degand, M. lEltude synth^tique et critique des principales th^ries
modernes sur le role de la faute. Lille, 1912. 180 p.

®** Bettremieux, P. Essai historique et critique sur le fondement de
la responsabilite civile en droit frangais. Lille, 1921. 208 p.

^^ Legal, A. De la negligence et de Fimprudence comme source de
responsabilite civile delictuelle. Paris, Jouve, 1922. 225 p.

^ Meignie, M. Responsabilite et contrat. Essai d'une delimitation
des responsabilites contractuelles et deiictuelles. Lille, Robbe, 1924.
288 p.

^ Triandafil, E. L'id^e de faute et I'idee de risque comme fondement
de la responsabilite. Paris, Rousseau, 1914. 228 p.

^ Guex, R. La relation de cause k effet dans les obligations extra-
contractuelles. Lausanne, de C. Pache, 1904. 190 p.

^^ Marteau, P. La notion de la causality dans la responsabilite civile.
Aix, 1914. 260 p.

^niuguet, G. L'idee de responsabilite civile, son evolution. Paris,
1922. 87 p.

CIVIL CODE 99

on civil law. Reference should be made, however, to an
important study of French and German theories of posses-
sion of movables ^^ by the eminent Professor Saleilles, who
wrote extensively on German civil law. Important works
on German civil law, by the same writer, and not already
mentioned, are indicated in a note.^^

Likewise, the general rules of testate and intestate sue- succession
cession receive their best treatment in the general treatises
on civil law. Mention might be made of the fact that
testate succession is usually dealt with in connection with
gifts, thus following the order of the Civil code (arts. 901-
1100). An essay on intestate succession^ in English,^^ was
published by Barthelemy Colin in 1876. While it gives
some idea of French law and the various theories of intes-
tate succession, due to its age, its present value is doubtful.
A very good English summary of the French law of wills
and probate was published by Pierre Pellerin^^ in 1920.
The portion dealing with death duties has been largely
superseded by subsequent legislation. Attention should be
called to a valuable article on Civil law substitutes for
trusts by Pierre Lrepaulle, lecturer on comparative law at
the University of Paris (36 Yale Law Journal, 1126).

COMMERCIAL LAW

The principal sources of the present rules of law govern- Oommer-
ing commercial transactions are the Commercial code, as ^ "'"""'

" SaleiUes, R. De la possession des meubles ; etudes de droit alle-
mand et de droit frangais. Paris, Piehon et Durand-Auzias, 1907.
351 p.

^' SaleUles, R. Introduction a r^tude du droit civil aUemand. Paris,
Piehon, 1904. 124 p.

Idem. De la declaration de volonte ; contribution k I'etude de I'acte
juridique dans le Code civil allemand. Paris, Piehon, 1901. 421 p.
Reprint 1929. 423 p.

^^ Colin, B. H. An essay on intestate succession according to the
French code. London, Stevens & Sons, 1876. 153 p.

^'^ Pellerin, P. The French law of wills, probate, administration and
death duties. Of the estates of Englishmen leaving property in
France. 2d ed. London, Stevens & sons; Paris, The author, 1920.
90 p.

^ cial Code

100 GUIDE TO THE LAW OF FRANCE

modified by subsequent legislation, legislation antedating
the adoption of the code and the Civil code.

Prior to 1808 when the Commercial code went into effect
commercial transactions were mainly governed by the legis-
lation of Louis XIV as contained in the commercial and
maritime ordinances of 1673 and 1681, already mentioned
in the chapter on legal history. As early as 1787 a commis-
sion was appointed to revise the existing legislation but the
political events which followed interrupted its work. While
the Constituent Assembly announced its intention to pro-
ceed with the codification of both civil and commercial law,
no definite steps were taken with respect to commercial law
until 1801, when a commission of seven members was ap-
pointed under the Consulate to prepare a Commercial code.
Although a project was presented to the Government by
Chaptal, Minister of the Interior, in December of the same
year, the general plan was left in abeyance until 1806 when
a financial crisis brought about a number of failures, which
again brought to the fore the need for revision of the com-
mercial laws. Study of the original plan was revived and
the text was ultimately transformed into law through the
same legislative processes as were followed in the adoption
of the Civil code with the result that it went into effect
on January 1, 1808, after having been definitely voted on
during the course of 1807.

It might be stated in passing that the history of the
adoption of the Commercial code is summarized in the dif-
ferent manuals on commercial law. Good discussions may
be found in those by Thaller and Percerou and Lyon-Caen
and Renault and in the treatise by Professors Lyon-Caen
and Eenault.
Contents ^\^q Commercial code which is, of course, the basic source
of French commercial law, comprises 648 articles and is di-
vided into four books which in turn are divided into titles,
chapters, and sections.

The first book, comprising articles 1 to 189, is entitled
Du commerce en general and deals with traders, the books of
traders, commercial associations, the publication of the mar-
riage contract of traders, brokers, factors, commercial sales,
bills of exchange, and promissory notes.

COMMEECIAL LAW 101

The second book, comprising articles 190 to 436, deals with
maritime commerce {infra).

The third book, comprising articles 436 to 615, deals with
insolvency and bankruptcy {infra).

The fourth book, comprising articles 615 to 648, deals with
the organization of commercial courts.

There have been two official editions of the Commercial
code, that of its promulgation and a second and last in
1841.

Like those of the Civil code, private editions vary in size Private
and manner of treatment. There are three important an-^^*^**°^
notated editions. Those sold by Dalloz ^^ and the Reaiieil
Sirey^^ are equally valuable and are usually considered to
be better than that published by Marchal and Godde ^^ and
sometimes cited under the name Sirey. That published by
Dalloz consists of one volume published in 1878, a supple-
ment published in 1896, and " additions complementaires "
published in 1905. Like the annotated Civil code of the
same publishers, it is annotated to both doctrine and juris-
prudence. That sold by the Recueil Sirey consists of two
volumes which were prepared between 1903 and 1906 under
the direction of Professor Cohendy, of Lyon, and Alcide
Darras.

There are a number of small pocket editions. That pub-
lished by Dalloz ^^ and belonging to the series, Petite col-
lection Dalloz^ seems to be the best. In addition to the Code,
it contains all the important subsequent legislation relating
to commercial matters and short annotations to court de-
cisions. The pocket edition published by Sirey ,^^ one of
the Petits codes Carpentier^ is also important.

There are several English translations. Unfortunately
they are all comparatively old and for that reason fail to

^^ Dalloz. Les codes annotes d'apr^s la doctrine et de la juris-
prudence : Code de commerce. Paris, Dalloz, 1877. 1,086 p. Supple-
ment. 2. ^d. 1896-1905. 1,041 p.

^Cohendy, E., et Darras, A. Code de commerce annot^. Paris,
Larose, 1903-08. 2 v.

^ Sirey, J., et Sirey, C. Les codes annotes de Sirey : Code de com-
merce. 4. ^d. Paris, Marchal et Godde, 1910. 2 v.

*^ Dalloz. Code de commerce, Edition 1928. Paris, Dalloz. 652 p.

^'^ Carpentier, A. Code de commerce, Edition 1927. Paris, Recueil
Sirey. 719 p.

Civil Code
and Com-

102 GUIDE TO THE lAW OF FRANCE

take into account later legislative developments. The best
seems to be that of Sylvain Mayer,®^ published in 1887.
There is also a good translation in Goirand's English Tren-
tise on Franch commercial lam?'^
As might be expected different parts of the Commercial
merciai code have been amended from time to time to meet chang-
^^ ing economic conditions. Nevertheless, its provisions are not

always adequate to meet present-day legal problems, either
because of total lack of applicable provisions or because of
insufficient treatment. In such cases, following a theory
that the Commercial code is exceptional and the Civil code
the fundamental basis of French private law, it is necessary
to have recourse to the latter to supplemenC the defects of
the Commercial code. In the case of partnerships it is
expressly provided that the Civil code is to govern in the
absence of applicable provisions in the Commercial code.
(Com. c. 18, Civ. c. 1873.) But in other instances, such as
commercial sales, which are inadequately dealt with in
the Code, or insurance other than marine, which is not
touched upon at all, it is presumed that the general provi-
sions of the Civil code were intended to supplement those of
the Commercial code.
Legislation The act of September 15, 1807, which fixed the date when
Code the Commercial code would become effective, expressly re-
pealed all anterior laws dealing with matters touched upon
in the new Code. By implication those subjects not dealt
with are still governed by preexisting laws. Although re-
ferred to in works on commercial law their number is
limited and comparatively unimportant.
commen- Turning now to the general treatises on commercial law

taries

Treatises we find that the cvolution in method of treatment was much
the same as that in the treatment of civil law. The earlier
works were largely commentaries while those of to-day are
treatises which follow the same method of treatment to be
found in present-day works on civil law.

®® Mayer, S. The French Code of commerce, as revised to the end of
1886. London, Butterworths, 1887. 307 p.

®^Goirand, L. A treatise upon French commercial law and the
practice of all the courts. 2. ed. London, Stevens & Sons ; New York,
Baker, Voorbis & ec, 1S98. 894 p.

COMMERCIAIi LAW 103

Most of the older works are no longer of importance but
there are several which though not often consulted are
worthy of mention. Of the earlier commentators Pardessus
should be classed among the first. His important work,
Cows de droit com/mercial^^^ first appeared in 1814-1816 and
was published in a sixth edition by Eoziere in 1857. An-
other important earlier work is that of Delamarre and Le
Poittevih which was published in a second edition in 1861.
The first edition was published under the title Oontrat de
commission ou des ohligations conventionnelles en mMiere
comm^erciale and the second under the title Traite theoriqxie
et pratique de droit coTnTnercial.^^ A somewhat later com-
mentary is that of Bedarride, Droit coTrnnercicd, Gormnen^
tcdre du cade de commerce} It is interesting to note that

^ Pardessus, J. Cours cle droit commercial. 6. M. par de Rosidre.
Paris, Plon, 1857. 4 v.

^Delamarre, E., et Le Poitevin. Traite th^orique et pratique de
droit commercial. 2. M. Paris, Hingray ; Plon, 1861. 6 v.

^B^daridde, J. Droit commercial. Commentaire du Code de com-
merce :

Des commergants ; Des livres de commerced 2. 4d. Paris, Durand
et Pedone-Lauriel, 1872. 542 p.

Des societ§s. 2, M. 1894. 636 p.

Des bourses de commerce. 2. 4d. 1894. Reprint 1921. 666 p.

Des commissionaires. 2. M. 1894. 636 p.

Achats et ventes. Nouv. ed., par B. Abram. Paris, Larose et
Tenin, 1909. 423 p.

De la lettre de change. 2. 4d. Aix, Makaire, 1894. 2 v.

Du commerce maritime. 2. M. 1894. Reprint 1920. 5 v.

Des faillites et banqueroutes. 5. ed. 1874. 3 v.

De la juridiction commerciale. 2. ^d. 1891. Reprint 1920.
584 p.

Commentaire de la loi du 14 Juin, 1865, sur les cheques. Paris,
Durand et Pedone-Lauriel, 1874. Reprint 1920. 302 p.

Commentaire des lois sur les brevets d' invention — ^marques de
fabrique. Aix, Makaire, 1868. 3 v.

Commentaire de la loi du 10 d^cembre, 1874, sur I'hypoth^que
maritime. 1886. 536 p.

Questions de droit commercial et de droit civil, avec leurs solu-
tions. Reprint 1924. 396 p.

Traite du dol et de la fraude en mati^re civile et commerciale.
4. ^d., rev. par. A. Riviere. Paris, Chevalier-Marescq, 1887. 4 v.

Commentaire de la loi du 24 juillet, 1867, sur les soci^t^s. Aix,
Makaire, 1856. Reprint 1877. 2 v.

104 GUIDE TO THE LAW OF FRANCE

a number of the volumes included within this latter com-
mentary have been recently reprinted. It should be re-
marked, however, that their value is far from being the
equal of that of the two important collections or treatises
which have appeared within the past few years. Another
important older work is Bravard-Veyrieres' treatise." A
second edition was annotated and republished by Professor
Demangeat in 1886-92.

The popular modern treatise, particularly with lawyers,
is that of Professors Lyon-Caen and Renault, both of the
Paris Law School, Trmite de droit comviej^GialJ^ consisting
of eight volumes covering practically the entire field of com -
mercial law. The first volume contains a short history of
commercial law and, in addition, deals with commercial trans-
actions, traders, commercial courts, labor courts and cham-
bers of commerce. The second volume, in two parts, deals
with the different possible business associations under
French law. The third deals with general rules concern-
ing commercial contracts and treats in particular of proof in
commercial matters, sales, pledges, warehouses, warehouse
receipts, commissions and transportation. The fourth vol-
ume deals with commercial effects, including bills of ex-
change, promissory notes and checks, banking operations
and transactions on exchanges. The fifth and sixth are
devoted to maritime law and the seventh and eighth to
insolvency and bankruptcj^

Another equally important work is the TraUe g&rheraZ
theorique et pratique^^ which Y>^as originally published iin-

^ Bravard-Veyri^res, P. Traite de droit commercial, publie et annot^
par 0. Demangeat. 2. ed. Paris, Ploii ; Chevalier-Marescq, 188(>-02.
6 y.

^ Lyon-Caen, C, et Renault, L. Traite de droit commercial. Paris,
Librairie generate do droit et de jurisprudence. Vols. 1, 3, and 4.
5. ed. 1921-25. Vols. 2, 5, 6, 7, and 8, 4. ed. 1908-15.

^ TbaUer, E. Traite general theorique et pratique de droit com-
mercial. Paris, Rousseau. The foUowing treatises have been pub-
Ushed :

Pic. P. Des societes commerciales. 2. ed. 1925-26. 3 v,
Josserand, L. Du contrat de transport. 2. ed. 1926. 1 v.
Ripert, G. Du droit maritime. 2. ed. 1922-23. 3 v.
Percerou, J. Des faillites, banqueroutes et Uquidations judi-
ciaires. 1907-13. 2 v.

COMMERCIAL LAW 105

der the direction of Professor Thaller, of Paris, but is at
present under that of Professor Percerou, also of Paris.
The general plan is that followed in the treatise on civil
law published under the direction of Professor and Dean
Baudry-Lacantinerie, of Bordeaux. Instead of representing
the work of one or two legal publicists it consists of a num-
ber of separate treatises written by eminent members of
various faculties. At present the collection consists of an
important work on commercial associations, Les societes
commercialese by Professor Pic, of Lyons; a treatise on
transportation, Les transports^ by Professor Josserand, dean
of the Lyon Law School ; an outstanding work on maritime
law, Droit mmitime^ by Professor Ripert, of Paris, and an
important treatise on bankruptcies, insolvency, and judicial
liquidation, by Professor Percerou, also of Paris. Professor
Eoubier, of Lyons, is said to be preparing a treatise on in-
dustrial and literary property which will form a part of
the collection. When completed the Traite general will
cover the entire field of commercial law.

Turning now to the modern shorter works on commercial
law, we find a larger field to choose from. While they are
intended for the use of students, the more important are
also of practical value. Of these the most popular is that
of Professors Lyon-Caen and Renault, which was published
in a fifteenth edition in 1928, under the title Manuel de
droit coTnmerdul,^ Unlike the other shorter treatises it
also comprises maritime law. While perhaps not as popu-
lar, the Traite elerwentaire ^ of Professor Thaller is equally
valuable and scholarly. Mention should be made of the
fact that the seventh edition represents a revision by Pro-
fessor Percerou of the Paris Faculty. Other recent im-

' Lyon-Caen, C, et Renault, L. Manuel de droit commercial (y
compris le droit maritime). 15. ed. Paris, Pichon et Durand-
Auzias, 1928. 1,348 p.

® Thaller, E. Traite elementaire de droit commercial a I'exclusion
du droit maritime. 7. ^d. rev. par. J. Percerou. . . . Paris, Rous-
seau, 1925. 1,360 p.

106 GUIDE TO THE LAW OF FRANCE

portant works comprise the Precis de droit commercials^
by Professor Laeour, Professor of commercial law at the
University of Lille, and Dr. Bouteron, and the Precis
theorique et f^atique^ by Professor Wahl, of Paris. The
former consists of four volumes, the third and fourth of
which are devoted to judicial decisions pertaining to com-
mercial matters. Professor Wahl's Precis is particularly
interesting because of its critical study of the applica-
tion of the provisions of the Commercial code to present-
day problems. Older manuals include those of Professors
Bravard-Veyrieres ^ and Boistel.^^

An important periodical devoted entirely to commercial
law is the Annodes de droit commercial et industriel franqais^
which was founded by Professor Thaller in 1886 and is now
published under the direction of Professor Percerou.

Before taking up the literature devoted to particular
topics falling within the scope of commercial law, attention
should be called to two works in English, A treatise upon
French mercantile law and the practice of the courts ^^ pub-
lished by Napoleon Argles in 1882 and French commercial
lam and the practice of the courts ^^ published by Leopold
Goirand in 1898. The latter, which includes maritime law
and the law of patents and trade-marks, seems to be the bet-
ter piece of work, but as is often the case with English works
on French law, it has not been revised, with the result that it
fails to take into account later developments through legis-
lation and court decisions.

^ Lacour, L., et Bouteron, J. Precis de droit commercial, non
compris le droit maritime. 3. M. Paris, Dalloz, 1925. 4 y. Supple-
ment, 1928. 310 p.

^Wahl, A. Precis theorique et pratique de droit commercial.
Paris, Recueil Sirey, 1922. 1,254 p.

® Bravard-Veyrieres, P. Manuel de droit commercial. 7. ed. rev.
par Demangeat. Paris, A. Marescq, aine, 1868. 793 p.

^^Boistel, A. Manuel de droit commercial. 3. ^d. Paris, Fonte-
moing, 1899. 800 p.

"Argles, N. A treatise upon French mercantile law — accompanied
hy a new translation of the entire Code of Commerce. London,
Waterlow bro' & Layton, 1882. 576 p.

"Goirand, L. A treatise upon French commercial law and the prac-
tice of all the courts. 2d ed. London, Stevens & sons; New York,
Baker ; Voorhis & CO., 1898. 894 p.

COMMERCIAL LAW 107

Mention should be made of the fact that a resume of cer-
tain parts of French commercial law is contained in a col-
lection ^^ published in 1915 by Archibald Wolfe, of the De-
partment of Commerce, in collaboration with Professor Bor-
chard, at the time law librarian of the Library of Congress.
Important bulletins on foreign commercial laws are pub-
lished from time to time by the Department of Commerce.
Useful information as to commercial matters with a sum-
mary of French law may be found in the Manual of French
lam ^* published in 1902 by Cleveland Coxe, at one time dep-
uty consul general in Paris.

French terminology as applied to the various associa-
tions recognized by law is not always easy to understand.
For that reason it is believed that time taken for a prelimi-
nary explanation of terms may be well worth while. Associa-

In non-legal language the French terms societe and asso- ^^^^^'
elation are often used interchangeably to denote any asso-
ciation of two or more persons for a common purpose. In
a narrow legal sense the term association refers to associa-
tions organized for some purpose other than that of profit.
In this sense it includes charitable, benevolent, and social
organizations which until recently came within the purview
of articles 291 and 292 of the Penal code forbidding the
union of 20 or more persons without special authorization.
These provisions of the Penal code were repealed by an
enactment of July 1, 1901, which proclaimed the principle
of liberty of association. On the other hand, the term
societe refers to associations organized for the purpose of
gain. The latter did not come within the scope of the pro-
hibition of the Penal code and were, and for that matter
still are, governed by the Civil code (arts. 1832-1873), the
Code of commerce (18-64), and subsequent legislation. In
this narrow sense the term societe comprises the French
equivalents of partnerships, limited partnerships, and cor-
porations or companies.

" U. S. Dept. of Commerce. Commercial laws of England, Scotland,
Germany, and France, by Archibald J. Wolfe in collaboration with
Edwin M. Borchard. Washington, Govt, print, off., 1915. 127 p.

"Coxe, H. C. Manual of French law and commercial information.
Paris, New York, Brentano's, 1902. 292 p.
49926°

108

GUIDE TO THE LAW OF FRANCE

Partner-
ships.
Corpora-
tions

Commer-
cial Part-
nerships

Limited
Partner-
ships

Sooietes or associations organized for profit are of two
kinds, civil and commercial. The former, which are gov-
erned wholly by the Civil code (arts. 1832-1873), comprise
universal and particular partnerships. The first seem to
exist to-day in name only and include associations in which
the members pool all of their property and profits therefrom
or all of their earnings (Civil code, arts. 1836-1840). Par-
ticular partnerships are characterized by the union of two
or more persons for profit with respect to a particular thing
or noncommercial venture (Civil code, arts. 1841-1842).
Comparatively, particular partnerships are few in number.

Commercial associations are governed primarily by the
Commercial code (18-64) and subsequent legislation and,
in the absence of applicable provisions in either, by the
Civil code.

Article 19 of the Commercial code states that there are
three kinds of commercial associations {societes) recognized
by law: Societe en nom coUectif^ societe en commandite^
and societe anonyme. In reality there are four, since
societes en commandite are divided into two categories, the
societe en commandite simple and en com^mandite par
actions.

Independently of the four categories of commercial as-
sociations designated under the term societes^ the Com-
mercial code also recognizes another type of association,
association en participation. This type of association may
exist with respect to one or more operations or with respect
to an entire industry. Its main characteristics are its se-
crecy with respect to third parties and the fact that those
who act for the association act in their own name. As
between themselves the parties are governed by their con-
tract, which alone constitutes the association.

The societe en nom coUectif resembles the common-law
partnership. All of the members may participate in the
management of the affairs of the firm and all are liable
jointly and severally {in solido) for its debts.

The societe en commandite simple or as it is often called
par interet resembles the statutory limited partnership of
some of our states. It is characterized by tvv^o types of m.em-

COMMERCIAL LAW 109

bers — one or more called com/mandites who manage the af-
fairs of the concern and are personally liable for its debts, and
one or more called coTiimandit aires or hailleurs de fonds
who take no part in the management and whose liability is
limited to their financial interest.

The societe en commandite far actions differs from the
ordinary societe en commandite in that the non-managing
members are holders of transferable shares instead of hav-
ing merely an interest in the concern.

The societe anonynne resembles the American stock corpo- corpora-
ration or English company. The members are not per- companies
sonally liable for debts, and the management of its affairs
is delegated to directors.

Time can not be taken to discuss the numerous legislative
changes of the last century in so far as they concern com-
mercial associations in general. They are all noted in the
various works on commercial law which have already been
discussed and the special works on civil and commercial
associations which will be referred to later. Due to its
importance, reference might well be made here to the legis-
lation governing societes en coTnmandite par actions and
societes ananymes.

Adopting the theory of sovereign grant of corporate life, Legislation.
the Code originally provided for special governmental au- Partner-
thorization for the formation of societes anonfumes or corpo- ^'^^p^ ^^^
rations. At the same time the societe en commandite was left tions
free from governmental control. One of the results was that
the period following the adoption of the Code was marked
by a preponderance of societes en commandite par actions.
Absence of regulation often led to abuses and fraud, and in
1856 the Commandite par actions was brought within gov-
ernmental supervision. While special preliminary authori-
zation was not required for formation, the amount and sub-
scriptions to shares were strictly regulated. A step toward
the abolition of the requirement of special preliminary gov-
ernmental authorization for the formation of limited com-
panies or corporations was taken in 1863 through the enact-
ment of a law providing for the formation, without special
charter, of companies with limited responsibility {societes
a responsabilite limitee)^ having a capital not exceeding

110 GUIDE TO THE LAW OF FRANCE

20,000,000 francs. In 1867 the necessity for special authori-
zation with respect to the formation of companies or cor-
porations in general was done away with in an act of July
24 which permitted the formation of a corporation by an
instrument under seal if the number of incorporators did
not fall below seven (arts. 21 and 23). Other provisions
of the same law strictly regulated the amount and subscrip-
tions to shares of stock.

This act of 1867 as modified, notably in 1893, 1903, and
1913, is now the controlling legislation with respect to the
formation of both societes en eoinmandite par actions and
societes anonymes. It should be noted that life insuran'^e
companies which are governed by the provisions of an act
of March 17, 1905, as modified in 1921, were excepted from
the terms of the act of 1867, and other insurance companies
are regulated by certain additional provisions {ef. Decree
of March 8, 1922). Financial associations were also brought
within closer governmental control by subsequent legislation.

French legal literature concerning business associations is
exceptionally abundant and the tavsk of pointing out the
works which seem to be the more valuable is difficult. The
difficulty is enhanced by the fact that the manner of treat-
ment varies. Certain w^orks deal with both civil and busi-
ness associations, others with commercial associations in gen-
eral, and still others with particular kinds of commercial
associations.
General Lit- Of those dealing with associations in general the out>
standing treatise is that by Houpin and Bosvieux, TraitS
general^ theorique et pratique ^^^ a 3-volume work which was
published in a sixth edition in 1927. Devoted to associations
with and without profit-making purposes it is kept up to date
by the Journal des societes {infra), A somewhat less valu-
able treatise covering the same subject matter is Vavasseur's
Traits des societes civiles et commerdales^^^ a 2 -volume work

"Houpin, C, et Bosvieux, H. Traite g^n§ral theorique et pra-
tique des soci^t^s civiles et commerciales et des associations. 6. ed.
Paris, Journal des Notaires ; Recueil Sirey, 1927. 3 v,

^*' Vavasseur, A. Traite des soci^t^s civiles et commerciales (avee
formules) ... 6. 6d. Paris, Marchal & Godde, 1910. 2 v.

COMMERCIAL LAW 111

which was published in a sixth edition in 1910. The treatise
by Houpin and Bosvieux besides being decidedly superior
and having the advantage of later publication is probably
the best existing practical guide to the different legal prob-
lems concerning partnerships and companies.

There are several important works dealing primarily with
commercial associations, including partnerships and com-
panies. Of these the best is the Traite des societes com-
merciales ^'^ by Professor Pic which forms a part of the
Collection Thaller. Another important but less valuable
work is that by Professor Arthuys, Traits des sodetes com-
merciales.^^ Reference is also sometimes made to Professor
Rousseau's Traite theoHque et pratique des societes com-
TTierciales ^^ which was published in a fifth edition in 1921.
This latter work, however, is not of the same general
scholastic standard as those which have already been men-
tioned. Mention should also be made here of a recent short
work dealing with the civil law and commercial associa-
tions, by Robert Desiry.^^^

Most of the questions relating to particular kinds of com-
mercial associations are adequately treated in the general
treatises which have just been mentioned, but reference
should be made to the recent 3-volume Traite theorique et
pratique des societes anonyrries ^^ by Copper-Royer, dealing
in particular with companies or stock corporations. Very
valuable for its originality and interesting, this work, though
perhaps not always dependable, contains the best individ-
ual treatment of societes anonymes. Reference is frequently
made to a popular practical work by Decugis.^^ It deals

^^Pic, P. Des soci^t^s commerciales. 2. ed. Paris, Rousseau,
1926. 3 V.

^* Arthuys, A. Traite des societes commerciales. 3. ed. Paris,
Recueil Sirey, 1916-17. 2 v. Formulaire par Lecouturier. 1919.
309 p.

^^ Rousseau, R. Traite theorique et pratique des societes f rangaises
et ^trang^res. 5. ed. Paris, Rousseau, 1921. 2 v.

^^* Desiry, R. Droit civil et societes commerciales. Paris. Rous-
seau, 1929. 357 p.

'"'Copper-Royer, E. Traits theorique et pratique des soci6t§s
anonymes. 3. ^d. Paris, Marchal et Godde; Dalloz, 1925. 3 v.

^Decugis, H. Traits pratique des soci^t^s par actions. 6. M.
Paris, Recueil Sirey, 1926. 984 p.

tives

112 GUIDE TO THE LAW OF FRANCE

with both limited partnerships having transferable shares,
and stock corporations.

Private Eecent legislation (act of March 7, 1925) created a new

form of limited company, similar to the English private
company and characterized by the absence of negotiable
shares, the interest of the members of the association being
only transferable with the consent of a majority of the
shareholders representing three-fourths of the capital stock.
This new type of limited company {societe a responsahilite
limitee)^ not to be confused with that provided for in the
act of 1863 {supra) ^ has been the subject of two important
commentaries, one by Professors Pic and Bartin, Des
societes e responsabilite limitee^^^ published in 1927, and the
other by Mr. Drouets, Traite thecn'ique et pratique des
societes a responsabilite liTriitee^^ a second edition of which
appeared in 1927..

^^r^^ French legislation concerning cooperative associations is

usually touched upon in the general works on commercial
law. Very good summaries may be found in the manuals
by Professors Lyon-Caen and Renault and by Professors
Thaller and Percerou. In addition an excellent account of
the legislation up to 1919 is contained in a thesis by Nast,
Le regime juridique des cooperatives.^^

Before turning to the status of foreign corporations and

tions companies in France reference should be made at this point

to an important work by Professor Hemard of Paris,
TMorie et pratique des nudites de societes et des societes de
fait,^^ Published in a second edition in 1926, it deals with
de facto companies and the effect of failure to comply with

^ Pic, P., et Bartin, F. Des societes h responsabilite limit^e. Etude
critique et commentaire pratique de la loi du 7 mars 1925. Paris,
Juris-classeurs, 1927. 707 p.

^Drouets, G. Traite theorique et pratique des societes k respon-
sabilite limitee. 2. ed. Paris, Recueil Sirey, 1927. 645 p.

^Nast, A. Le regime juridique des coor>eratives. Paris, Jouve &
q'% 1919. 296 p.

^Hemard, J. Theorie et pratique des nullites de societes et des
soci6t^s de fait, ifitude de jurisprudence et de droit compare. 2. ed.
Paris, RecueU Sirey, 1926. 1,009 p.

De Facto
Corpora-

COMMERCIAL LAW 113

the positive provisions of the act of 1867 in the formation
of societes en coTrmmndite par dotions and societes anonymes.

With the expansion of American business beyond the con- Foreign
fines of the United States the conditions under which Amer- tio^^^^
ican business associations may trade in foreign countries
has become of growing importance. The increase in the
number of American corporations doing business in France
has made the question of the status of foreign corporations
and firms in that country one of peculiar interest to Amer-
ican lawyers and business men.

While foreign partnerships were always permitted to do
business in France under the same conditions as individuals,
prior to 1857 foreign corporations were required to obtain
special governmental authorization. In a law of that year
(May 30) enacted as the result of difficulties with Belgium
arising out of the exclusion of French limited companies
from the latter country, Belgian corporations and other
commercial, industrial, or financial associations were per-
mitted to do business in France under the sole condition
that they conform to French law. The second article of
the same law made provision for the extension through
ministerial decree of the privileges enjoyed by Belgian as-
sociations to those of other countries. American corpora-
tions were permitted to do business without preliminary
governmental authorization as the result of a decree of Au-
gust 6, 1882. English companies, however, derive the privi-
lege of doing business from a treaty of June 30, 1862.

The privileges and duties of American corporations in
France are dealt with by Charles Loeb, an American lawyer
practicing in Paris, in a recent work entitled Legal stattt^ of
American corporations in FroMce?-^ In addition to a dis-
cussion of French law with respect to associations in general
and corporations and companies in particular, Mr. Loeb's
book gives excellent translations of all French legislation
concerning corporations. There are several other works in
English dealing with French corporation law and foreign
corporations in France. A practical handbook for lawyers

''"Loeb, Ch. Legal status of American corporations in France.
Paris, Lecram, 1921. 534 p.

114 GUIDE TO THE LAW OF FRANCE

and business men was published by Pierre Pellerin^^ in
1920. A short treatise by Leopold Goirand^^ appeared in
1902 and English companies in France were dealt with by
Thomas Barclay ^^ in 1899.

The status in France of foreign companies generally is
dealt with in French works on commercial law and business
associations as well as in important treatises on private inter-
national law. In addition, the subject received scholarly
treatment in Professor Fillet's Les personnes morales en
droit international 'p-'ive^^^ a work which deals not only
with business associations but with the various conflict of
laws problems which concern all types of juristic persons.
Issue and Closcly related to the question of the ability of foreign
of Foreign associatious to do business in France is that of the issue and
Securities negotiation in France of securities of foreign companies and
corporations. Besides the treatment received in the differ-
ent texts on commercial law this important and complicated
question has been dealt with in several individual works.
The most recent, and generally considered the best, is
Lagarde's Remission de titres en F ranee ^^ Eeference is
also sometimes made to a thesis by Paul Dauphin, Emission
et oirculation des titres des societes etrangeres?'^ Some dis-
cussion may also be found in Mr. Loeb's book.
Nationality The qucstiou of the nationality of companies has given
French courts and writers considerable difficulty. Prior to
the World War the generally accepted doctrine, at least in
so far as jurisprudence was concerned, was that the nation-

'^^PeUerin, P. French company law (societes anonymes) ; a prac-
tical handbook for lawyers and business men. London, Stevens &
sons, 1920. 159 p.

''^Goirand, L. A treatise upon the French law relating to English
companies carrying on business in France. London, Stevens «& sons,
1902. 112 p.

^* Barclay, T. Companies in France; the law^ relating to British
companies and securities in France and the formation of French
companies. 2d ed. London, Sweet & Maxwell, 1899. 160 p.

^^ Fillet, A. Des personnes morales en droit international prive ;
soci^t^s etrangeres. Etats, etc. Paris, Recueil Sirey, 1914. 434 p.

^^Lagarde, G. L'emission de titres en France par des societes de
commerce etrangeres. Paris, Recueil Sirey, 1926. 424 p.

^^ Dauphin, B. P. Emission et circulation des titres des societes
etrangeres en France. Paris. 1907. 146 p.

COMMERCIAL LAW 115

ality of a corporation depends on the place of its principal
business (siege social) as evidenced by the general manage-
ment and stockholders' meetings. In determining the enemy
character of companies during the war, however, the courts
adopted as a test the control of the company, following
somewhat the British view in Daimler Co. v. Continental
Tyre and Rubber Co. (L. E. (1916) 2 A. C. 307), adopted
also in article 297 of the Treaty of Versailles. {See Clunet,
1917, 226, for an example of the application of this view.)
Mr. Loeb, in the work just mentioned (p. 21), states that two
other views have from time to time been advanced by differ-
ent writers, namely, that nationality depends on the law of
the place of incorporation, or, on that of the place where
the principal business interests of the corporation are located.

French writers on commercial law as well as those who
deal specifically with business associations devote some space
to this interesting and difficult problem. In addition, it has
been the subject matter of a number of theses. The best of
those published after the war is, perhaps, Cuq's La nation-
alite des societes^^^ an excellent comparative study of both
jurisprudence and legislation. Another good study is that
of Leven which first appeared in 1900 as a thesis and was
recently republished in a second edition under the title La
nationalite des societes et le regime des societes etrangeres en
Fromce.^^ This latter work gives a very .good account of the
French regulations concerning foreign companies doing
business in France. Pepy's La nationalite des societes ^^ is
also important and reference is often made to a similar
thesis by Gain.^^

Before leaving the general subject of business associa-
tions mention should be made of the important periodicals :
Journal des societes^ Revue des societes^ and Gazette des
societes,

^^ Cuq, M. La nationalite des societes. lEtude de jurisprudence et
de legislation compares. Paris, Recueil Sirey, .1921. 192 p.

^ Leven, M. De la nationality des soci^t^s et du regime des soci-
etes etrangeres en France. 2. ed. Paris, Rousseau, 1925. 480 p.

^''Pepy, A. La nationalite des societes. Paris, Recueil Sirey, 1920.
310 p.

^ Gain. R. La nationalite des societes avant et depuis la guerre de
1914-1918. Paris, DaUoz, 1924. 250 p.

116 GUIDE TO THE LAW OF FRANCE

Exchanges Exchangcs, including stock and commodity exchanges,
are governed primarily by the Commercial code (arts. 71-
90), as well as by a number of subsequent laws and decrees.
In addition, they are to some extent aifected by legislation
antedating the adoption of the Code.

While the general literature dealing with exchanges is
exceedingly abundant, that which appears to be worthy of
mention is comparatively small. Probably the best gen-
eral discussions are to be found in the treatise on commer-
cial law by Professors Lyon-Caen and Eenault and the
shorter works on commercial law, such as the manual of
the same writers and that of Professors Thaller and Per-
cerou. Though somewhat old the Traits theorique et
pratique des opera)tions de Bourse^'^ by Buchere, is often
referred to. Eeference is also sometimes made to a later
work on financial and exchange transactions in general,
Traits pratique de droit ftnancier^ hanques^ hourses de com-
merce^^ by Rousseau and Gallie. Stockbrokers, their
privileges and duties, was the subject of an excellent study
by Waldmann, La pfrofession d'^agent de cliaiige^'^ published
in 1910. In addition, the negotiation on exchanges of regis-
tered shares was dealt with in a short work by Bezard-
Falgas, De la negodatian en Bowse des titres nominatifs^^
published in 1921. Attention should also be called to the
fact that the portion of Bedarride's treatise dealing with
exchanges was recently reprinted.^^
Transfer of Jn this conucction mcutiou should also be made of two
Lostlnd valuable works by Bezard-Falgas dealing, respectively, with
stolen the loss and restitution of shares made out to bearer and
questions relating to contests over the transfer of shares
and bonds which have been stolen, lost, or destroyed. The

^' Buchere, A. Traite theoric[ue et pratique des operations de
Bourse. 3. ed. Paris, Plon ; ChevaUer-Marescq, 1892. 8.10 p.

^^ Rousseau, R., et GaUie, L. Traite pratique de droit tinaiicier,
banques, bourses de commerce, valeurs et marchandises. 2. ed. Paris,
Rousseau, 1924. 2 v.

^* Waldmann, A. La profession d'agent de change, ses droits et ses
responsibilites. 2. ed. Paris, Piclion et Durand-Auzias, 1910. 697 p.

*** Bezard-Falgas, J. De la negociation en Bourse des titres noini-
natifs. Paris, Pichon, 1921. 21 p.

^ Bedarride, J. Des bourses de commerce. 2. ed. Aix, Makaire,
1894. Reprint, 1921. m^ i).

COMMERCIAL LAW 117

first, a comparative study of French and foreign law, was
published in 1923 under the title Traite de la ferte et de
la restitution des titres au forteur ^^ and the second in 1908
under the title Le contentieux des oppositions sur titres
d'^a^etimis et d'^oiligations^^ Another important work by
the same writer is his Contentieux des trarisferts^^^ recently
published in a third edition. It deals with controversies
arising out of transfers of registered shares.

While relatively not as important as some of the other
topics falling within the scope of commercial law, it is
believed that the general literature dealing with fonds de
cormnerce^ which might be freely translated, a commercial
establishment, including the concepts " going concern " and
" good will," as well as " stock in trade," is of sufficient im-
portance to be mentioned. The legal nature of fonds de
commerce was dealt with in an important thesis by Gom-
beaux. Notion juridique du fonds de commerce.^^ In addi-
tion, the important act of March 17, 1909, which, as modi-
fied by subsequent legislation, makes provisions for the sale
and mortgage of fonds de commeree^ received treatment in
a very good work by Montier and Faucon which was pub-
lished in a third edition in 1914 under the title De la vente
et dit nantissement des fonds de commerce^^ An important
general treatise on the subject is that by Boutaud and Cha-
brol, Traite general des fonds de commerce,^'^ Cendrier's

"" Bezard-Falgas, J. Traite de la perte et de la restitution des
titres au porteur, frangais et etrangers. Paris, " Juris-classeurs,"
1923. 632 p.

''^ Bezard-Falgas, J. Le contentieux des oppositions sur titres
d'actions et d'obligations ; saisie des titres, titres perdus, vol6s ou
detruits. Paris, Pichon et Durand-Auzias, 1908. 367 p.

^^ Bezard-Falgas, J. Traits theorique et pratique du contentieux
des transferts d'actions et obligations nominatives. 3. 6d. Paris,
Librairie generale de droit et de jurisprudence, 1924. 765 p.

''^Gombeaux, E. La notion juridique du fonds de commerce.
Paris, Rousseau, 1902. 822 p.

^'Montier, F., et Faucon, G. De la vente et du nantissement des
fonds de commerce. 3. ed. Paris, Rousseau, 1914. 365 p. Supple-
ment, 1918.

^'Boutard, E., et Cbabrol, P. Traite general des fonds de com-
merce et de I'industrie, avec formulaire. Nouv. ^d. Paris, Rousseau,
1910. ii, 662, 112 p.

Railways

118 GUIDE TO THE LAW OF FRANCE

Traits gerveral^^^ recently published in a fourth edition, is
also important.
Transporta- XJnlike her continental neighbors, Belgium and Germany,
landNavi- Fraucc has no general legislation dealing specially with
gation ^YiQ important subject of inland navigation. A project for
the codification of the rules relating to the subject, which
are independent of those dealing with maritime commerce,
has been proposed, but for the time being the regulations,
in so far as the contract between carrier and shipper are
concerned, are those which relate to carriers in general.
These regulations are contained in the Civil code (arts.
1782-1786) under the title Des voitwde7^s par terre et fOfr
eau and in the Code of commerce under the titles Des com-
missi&nmmres pour les transports par terre et par eau (arts.
96-102) and Dv. voitwier (arts. 103-107). While adopted
at a time when modern means of transportation were not
thought of, these provisions are sufficiently broad to permit
their application to all forms of transportation.

In addition to the general provisions just mentioned, rail-
ways are governed by a number of laws and decrees, includ-
ing a fundamental law of July 15, 1845, by the special regu-
lations contained in the charters or operating concessions
to particular roads and by the official tariffs established with
the consent of the minister of public works.

Aerial navigation is governed by an important act of May
31, 1924, which might almost be called a code. This act is
divided into five titles dealing with airships — ^their nation-
ality, ownership and mortgage, the circulation of airships,
transportation, damage and responsibility, and certain penal
dispositions.

The outstanding work on transportation in general, in-
cluding transportation of passengers as well as merchandise,
is Professor Josserand's Les transports^ en service interieur
et en service internationaL^^ A part of the Collection

^^ Cendrier, G. Le fonds de commerce, traits general tlieorique et
pratique. 4. ed. Paris, Dalloz, 1926. 705 p.

^^ Josserand, C. Les transports, en service interieur et en service
international (transports ferroviaires, roulage, navigation interieure et
navigation a^rienne) ^ Fexclusion des transports maritimes. 2. ^d.
Paris, Rousseau, 1926. 1,137 p.

Aerial
Navigation

COMMERCIAL LAW 119

Thaller^ it was published in a second edition in 1926. In
addition to dealing with internal and international trans-
portation, it also discusses all forms of carriage, including
that by air and by rail and inland navigation. A good but
less valuable work, confined to inland transportation, is
Roger's Manuel theorique et pratique des transports.^^ Eef-
erence is also sometimes made to Duverdy's Traite d!u contrat
de transport^^ a much older treatise, which deals with land
transportation, particularly by rail. Another old wofk
which is often cited is Sarrut's Legislation et jurisprudenee
sur le transport,^^ This latter text is confined to carriage
of goods by rail. Mention should also be made of a prac-
tical manual of a popular nature published by Lamy in 1924
under the title Manuel pratique des transports par chemins
de fer,^^ This work, while confined to rail transportation,
comprises carriage of passengers and merchandise. Atten-
tion should be called to the fact that matters relating to
public administration of railways are usually discussed in
works on administrative law.

International transportation by rail was dealt with in a^n^ema-
recent work by Professor Brunet and Doctors Durand and Tra'^sporta-
de Fourcauld, Les transports intemationaux par voie ferree,^^ ti^^
While perhaps not as valuable as Professor Josserand's
treatment of the same subject this text is also of importance.

The law of bills of exchange and promissory notes is con- Negotiable
tained in the eighth title of the first book (arts. 110-189) of ^*^^'
the Commercial code. The law relating to checks forms
the subject matter of separate legislation, an act of June 14,
1865, as modified by subsequent enactments.

''^ Roger, R. Manuel juridique, theorique et pratique des transports
(droit maritime excepts ). Paris, Riviere, 1922-24. 2 v.

" Duverdy, D. C. Traits du contrat de transport par terre en general
et specialement par chemins de fer. 2. ^d. Paris, Chaix, 1874. 483 p.

^""Sarrut, L. Legislation et jurisprudence sur le transport des
marcliandises par chemins de fer. Paris, Chaix, 1874. 636 p.

''^Lamy, L. Manuel pratique des transports par chemins de fer,
voyageurs, marchandises et objets de toute nature. 10. ^d. Paris,
Recueil Sirey, 1924. 506 p.

** Brunet, R., Durand, P., et de Fourcauld. Les transports inter-
nationaux par voie ferree. Paris, Recueil Sirey, 1927. 949 p.

120 GUIDE TO THE LAW OF FRANCE

Professors Lyon-Caen and Kenault give an interesting
account of the steps leading up to the legislation of 1865.
{Ma7mel, p. 654 et seq.) The use of bank deposits in
France for checking purposes has always been less general
than in Anglo-American jurisdictions. Their use was par-
ticularly limited prior to 1865. But with the establishment
of credit institutions some means for the transfer of funds
had to be found. The logical method would naturally have
been that employed in England, a draft on the bank, pay-
able to order or bearer. Such a draft was subject, how-
ever, to a proportional tax under the provisions of an act
of June 5, 1850. In order to avoid its payment, depositors
adopted the practice of signing a receipt which was turned
over to the person to receive payment. Not being made
out to order (to avoid paying the tax) the receipt could
be used by a finder or thief to receive payment of the
amount indicated. The latter possibility naturally dis-
couraged this method of transferring funds.

In order to encourage bank deposits and a resulting use
of checks, the legislature in the act of 1865 declared that
during a period of 10 years checks would be exempt from
a stamp tax; but, at the same time, in order to avoid the
substitution of checks for drafts and thus an evasion of the
stamp tax on the latter instruments their use w^as subjected
to a number of regulations which explain some of the exist-
ing French rules with respect to checks. The most impor-
tant amendments to the law of 1865 are those of August 23,
1871, February 19, 1874, December 30, 1911, January 26 and
August 2, 1917, and March 22, 1924.

It is somewhat surprising to find that there is no good
modern French work devoted exclusively to bills and notes.
The subject is, of course, dealt with in the different manuals
on comm^ercial law and in the general treatise by Professors
Lyon-Caen and Eenault. In addition, there are two very
good works on checks, those of Bouteron, Le cheque^^^ and

^ Bouteron, J. Le cheque, th^orie et pratique. Paris, Dalloz, 1924.
918 p. Supplemented by Le droit nouveau du cheque ; jurisprudence
et legislation 1924-27. Paris, Dalloz, 1928. 218 p.

COMMERCIAL LAW 121

Drouets' La provision en nmtiere de cheque,^^ Payment
of commercial paper by check, under an act of August 28,
1924, and the development of the check in France are dealt
with in a recent work by L. Lamer.^^ In this connection,
reference should also be made to a work in English, The
French Law relating to hills of exchange^ proniissory notes
and chechs^^ published by Williamson in 1912.

Book 2 of the Commercial code is devoted in its entirety Maritime
to the rules governing maritime commercial transactions.
It does not, however, deal with maritime international law
including such subjects as prize and blockade nor with what
some French writers call administrative maritime law, in-
cluding the relations between the state and the merchant
marine and maritime police.

This second book is divided into 14 titles dealing with
such important topics as : ships and liens (Title i) , the seizure
and sale of ships (Title ii), owners and their liability (Title
III), the captain, his rights and duties (Title iv), the en-
gagement of the crew (Title v), charter parties (Title vi),
bills of lading (Title vii), freight (Title viii), bottomry
(Title ix), marine insurance (Title x), average (Title xi),
jettison (Title xii), and prescription (Title xiii).

Since the adoption of the Commercial code in 1807 the
second book has undergone but few changes. There are,
however, several legislative enactments of which some men-
tion should be made. The more important include an act
of July 10, 1885, relative to maritime mortgages, an act of
March 24, 1891, modifying article 435 of the Code with re-
spect to suits by shippers for damage and average, an act
of July 15, 1915, modifying articles 407 and 436 with re-
spect to collisions and limitation or prescription, a law of

^® Drouets, G. La provision en matiere de cheque (^tude de la doc-
trine et de la jurisprudence fran^aises). Paris, Recueil Sirey, 1924.
354 p.

"Lamer, L. Le reglement par cMque des effets de commerce, loi
du 28 aoiit 1924, et le d^veloppement general du cheque en France.
Paris, Sirey, 1928. 90 p.

''^ V^illiamson, A. The French law relating to bills of exchange,
promissory notes, and cheques. London, Stevens & sons, 1912. 224 p.

122 GUIDE TO THE LAW OF FRANCE

April 29, 1916, concerning salvage, and recent extremely im-
portant legislation comprising a disciplinary and Penal code
for the merchant marine (act of December 17, 1926), and
a labor code for seamen, replacing the fifth title of the sec-
ond book (act of December 13, 1926).
General Maritime law has been the subject matter of an extensive

Literature .

literature during the period of more than a century since the
adoption of the Commercial code. Of the older works the
most valuable is that portion of Pardessus's treatise on
commercial law devoted to maritime matters, which, while
perhaps seldom consulted at present, was long looked upon
as a classic. Somewhat later works which can still be con-
sulted with profit include de Valroger's 5-volume commen-
tary, published in 1883-1886 under the title Droit tnavitime.
Commentaire theoHque et pratique du livre ii du Code de
commerce ^^^ Desjardins's 9- volume Traite de droit commer-
cial maritiTTie^^^ published in 1878-1890, and de Courcy's
Questions de droit iiiaritime^^''^ published in four series in
1877-1888. Keference is frequently made to Dufour's Droit
maritwieP

Of the present current works the most important is un-
doubtedly the 3-volume treatise Droit maritime ^^ published
in a second edition in 1922-23, by the eminent Professor
Kipert, of the Paris Faculty. Professor Eipert's treatise, a
third edition of which is now in the course of publication,
contains copious references to the maritime law of other
jurisdictions as well as a scholarly discussion of French law.
The treatment of maritime law in volumes 5 and 6 of Pro-
fessors Lyon-Caen's and Renault's treatise on commercial
law is also of importance. While of value, Danjon's TraUe

^^Valroger, L. de. Droit maritime. Commentaire theorique, et
pratique du livre II du Code de commerce. Paris, Larose et Forcel,
1883-86. 5v.

^° Desjardins, A. Traite de droit commercial maritime. Paris,
Pedone-Lauriel, 1878-90. 9 v.

*^Courcy, A. de. Questions de droit maritime. Paris, A. Cotillon
et cie, 1877-88. 4 v.

®^Dufour, E. Droit maritime, commentaire des titres I et II, livre
II, du Code de commerce. Paris, Durand, 1859. 2 v.

^ Ripert, G. Droit maritime. 2. ed. Paris, Rousseau, 1922r-23. 3 v.
3. ed. Paris, Rousseau. Vols. 1 and 2, published 1929.

COMMERCIAL LAW 123

de droit Trmritime^^ is less important. Mention might be
made of the fact that the second edition of this latter work
will contain six volumes, published with the collaboration of
J. Lepargneur. Four have already appeared. Keference
should be made at this point to a 3-volume work by F.
Guerin.^^ The first volume deals with administrative mari-
time law, the second with laws and regulations, and the third
with commercial and international maritime law.

The number of one-volume works on maritime law is small,
and none are comparable with the larger treatises. Profes-
sor Wahl's Precis theorique et fvatique^^ while of value, is,
perhaps, too detailed for a work of this kind. Professor
Bonnecase, of the Bordeaux faculty, is also the author of a
short work, Trcdte de droit commercial maritime ^^"^ which,
though w^U written, is not of the same outstanding merit as
his other works. A very good recent summary work, in-
tended entirely for the use of students, is Professor Lacour's
Precis de droit wiaritim^,^^ Reference is sometimes made to
Professor Vermond's Manueh^^

An important periodical devoted to maritime law was pub-
lished from 1885 to 1923 under the title Revue intema^ioTude
du droit maritime. After 1923 its place was taken by the
Revue de droit Twaritime compare^ which contains a supple-
ment devoted to French maritime decisions.

As in other fields of French law, the particular topics
or subdivisions probably receive their best treatment in the
general treatises. There are, however, a number of works
devoted to some of the problems arising out of the applica-
tion of the second book of the Commercial code, or subse-

•^Danjon, D. Traits de droit maritime. 2. 6d. Paris, Recueil
Sirey, 1926-29. 6 v. 4 pubUshed.

^'^Guerin, F. Precis de legislation maritime. Paris, Gauthier-Vil-
lars, 1927. 3 V.

*" Wahl, A. Precis theorique et pratique de droit maritime. Paris,
Recueil Sirey, 1924. 614 p.

^'^ Bonnecase, J. Traits de droit commercial maritime. Paris, Re-
cueU Sirey, 1923. 625 p.

"^ Lacour, L. Precis de droit maritime. Paris, Dalloz, 1927. 350 p.

*'^Vermond, E. Manuel de droit maritime. 5. ed. Paris, Recueil
Sirey, 1920. 467 p.

49926°— 31 ^9

124 GUIDE TO THE LAW OF FRANCE

quent legislation, which it is believed are of sufficient inter-
est to warrant some mention,
liens. jj^ general, French law admits of the possibility of mort-

gages gage or hypothecation of immovables and pledge of mov-
ables. Prior to 1874: it was legally impossible to mortgage
a ship, as the law of mortgages applied only to realty. It
was practically inexpedient to pledge a vessel, as in order
to prevail over third parties, the pledgee is required under
French law to have possession. As a result, the only legal
or practical method of raising credit on a vessel was the
bottomry bond, the disadvantages of which are as real under
the rules of French maritime law as under those prevailing
in the United States and England. In order to remedy
the existing situation the French legislature in an act of
December 10, 1874, made provision for the hypothecation
or mortgage of ships, thus creating an exception to the gen-
eral rule limiting mortgages to immovables {ef. Civil code,
2120). A number of modifications were made in the act
of 1874 through a subsequent law of 1885 (July 10), and
it is this latter which, as modified in part, now governs
French ship mortgages.

Maritime liens seems to be better dealt with in the Com-
mercial code than under the existing legislation and court
decisions in the United States. Article 191 enumerates the
different possible liens, or, to use the civil-law term, " privi-
leges," and definitely fixes their relative rank.

A very good comparative study of maritime hypotheca-
tion is to be found in a thesis by Doctor Jourdan, Des sure-
tes reelles sur les ruwires^ etude de droit eoirupm^J^ Doctor
Jourdan's thesis also contains a chapter on liens and an
interesting historical introduction. Liens for supplies and
repairs are dealt with in a recent work by S. Carrus.^^
Collisions r^Y^^ French law with respect to responsibility for damage
suffered in a collision is contained in article 407 of the
Commercial code as amended in 1915. This amendment

^''Jourdan, L. Des sdretes reelles sur les navires. iStude de droit
compare. Aix, 1914. 328 p.

"Carrus, S. Les privileges sur le navire pour fournitures et
reparations. Paris, Librairie g^n^rale de droit et de jurisprudence,
1928. 216 p.

COMMERCIAL LAW 125

was enacted in order to bring French law into complete
harmony with the rules established by the Brussels con-
vention of 1910, to which France adhered. In sq far as
injuries to the vessels are concerned, the Brussels conven-
tion adopted the French point of view with respect ta
liability arising out of common fault, namely, division of
damages according to the degree of fault as contrasted with
the American doctrine of equal division and the common-
law doctrine of contributory negligence. Certain modifica-
tions of the former French law with respect to liability to
third parties were, however, introduced by the act of 1915.
Under the existing law each vessel is only liable for its
proportionate share of damages caused to merchandise, but
with respect to persons who have been injured or the heirs
of those who have been killed in the collision the liability
is joint and several {in solido) with recourse over in favor
of the owners of the vessel who have been obliged to pay
more than their share.

The principal French work on collisions is Autran's Code
international de Vdbordage^ de Vassistance et du sauvetage
mavitimesP A second edition was published in revised
form in 1902 by Bevotte. It should be remarked, however,
that this work, which also includes salvage, was published
prior to the enactment of the legislation of 1915 to which
reference has just been made. In a very good thesis, also
published prior to the legislation of 1915, Dr. Demey ^^ gives
an exposition of the different French rules applicable to col-
lision and includes a valuable comparison of the various
contributory negligence doctrines. He also discusses the
liability of the owners to third parties. The present law
is dealt with in the manual on commercial law by Pro-
fessors Lyon-Caen and Kenault and the general treatise
on maritime law by Professor Eipert.

The important maritime doctrine of limitation of lia- ^i^itati<?°
bility of owners is contained in article 216 of the Commer- °^ ^'^^'^'*^

"Autran, F. Code international de Tabordage, de I'assistanee et
du sauvetage maritimes. 2. gd. rev. par R. de Bevotte. Paris,
ChevaUer-Marescq, 1902. 596 p.

''^ Demey, J. De la faute commune, sp^cialement en mati^re d'abor-
dage maritime. Paris, 190G. 104 p.

126 GUIDE TO THE LAW OF FRANCE

cial code as modified by subsequent legislation. This article
makes provision for the surrender of the vessel in its condi-
tion at the time with freight for the last voyage, thus pro-
viding for a doctrine which is similar to that contained in
the American act of 1851. The laws and theories of the
principal maritime nations were dealt with by Prodromides
in an excellent thesis, Des restHctions Ugales a la respoTb-
sabilite des proprietaires de naviresJ'^ A very good discus-
sion may also be found in the second volume of Professor
Ripert's treatise.
Charter There is no general French treatise on charter parties

Maritime Comparable with Carter's English work on the subject, but
Transporta- ^ uscful short practical manual on the contract of mari-
time transportation was published in 1926 by Sauvage."^^ In
addition, the ability of the carrier to exempt himself from
liability through stipulation in the bill of lading has been
the subject matter of several important theses. Doctor Sau-
vage is also the author of an excellent comparative study
on negligence and non-responsibility clauses which was pub-
lished in the form of a thesis in 1911 under the title La
clause de negligence et les clauses de nonTesponsdbilite des
fautesP Other theses were published by Tallavignes
d' Angles ^^ and Gautier.^^ That of the latter appears to be
particularly good. Non-responsibility clauses in bills of lad-
ing in general were dealt with in a recent publication by M.
Armand.^^^

^''Prodromides, M. Des restrictions l-^gales a la responsabilite des
propri6taires de navires k raison des actes et des faits du capitaine
et des gens de I'equipage. Paris, Jouve, 1919. 739 p.

"* Sauvage, F. Manuel pratique du contrat de transport des mar-
cliandises par mer. Paris, Librairie generale de Droit et de juris-
prudence, 1926. 412 p.

'^ Sauvage, F. La clause de negligence et les clauses de non-
responsabilite des fautes dans le contrat de transport par mer. Paris,
Pichon et Durand-Auzias, 1911. 213 p.

"Tallavignes d' Angles, G. La responsabilite dans les connaisse-
ments frangais. Paris, 1908. 272 p.

^^Gautier, A. Des clauses d'ir responsabilite en mati^re de trans-
port maritime. Paris, Pichon et Durand-Auzias, 1910. 329 p.

^^"^ Armand, M. Le probleme des clauses de nonresponsabilite. Paris,
Sirey, 1929. 250 p.

COMMERCIAL LAW 127

Insurance and average are often treated in the same works. i™«ra°ce.
Unfortunately the outstanding French treatises dealing
with marine insurance are now too old to be of great prac-
tical value. The list of important works includes those by
Lemonnier/^ Emile Cauvet,^^ Weil,^^ and Droz,®^ all of
which were published prior to the end of the last century.
An important later Italian work, Vivante's^^ treatise on
insurance, was translated into French and is sometimes con-
sulted. In addition, the treatises on maritime law cover
maritime insurance. A recent thesis, Bourbonnaud's Les
courtiers^^^ dealing with insurance agents, is well worth
consulting.

General average has been the subject matter of a number
of very good theses. Mention should be made of an impor-
tant comparative study of the distinctive characteristics of
contribution, published by Haralambidis in 1920 under the
title Des caracteres distinetifs des avaries cormrmnes,^^ This
important thesis was published in a second edition in 1924.

Two other valuable theses on general average and con-
tribution were published by Procos and Llinas under the
titles Les awaries et leur reglement dwns les transports Tnarp-
thnes^^ and Essai sur le fonde^ment juHdique de la contri-

'^ Lemmonier, C. Commentaire sur les principales polices d'as-
surances maritimes usit^es en France. Paris, Videcoq, 1843. 2 v.

'^Cauvet, E. Traits des assurances maritimes. Paris, Larose,
1879-81. 2 V.

^^Weil, G. Des assurances maritimes et des avaries. Paris,
Marchal et Billard, 1879. ix, 539 p.

" Droz, A. Traits des assurances maritimes, du d^laissement et des
avaries. Paris, Thorin, 1881. 2 v.

^^Vivante, C. Traite th^orique et pratique des assurances mari-
times. Tr. par V. Yseus. Paris, Pedone, 1898. 564 p.

^* Bourbonnaud, J. Les courtiers d'assurances maritimes. Paris,
Rousseau, 1927. 127 p.

^^ Plaralambidis, T. Des caracteres distinetifs des avaries com-
munes et du fondement de la contribution k ces avaries en droit
fran^ais et compare. Paris, Librairie g^nerale de droit et de juris-
prudence, 1924. xiv, 686 p., 1 1.

^^ Procos, J. S. Les avaries et leur reglement dans les transports
maritimes (essai de r§formes). Paris, F. Pichon et Durant-Auzias,
1921. 149 p.

ance

128 GUIDE TO THE LAW OF FRANCE

hutioTi pour avarie^ coniTrmnesF' In addition, reference
should be made to an important commentary, in the form
of a thesis, on the old York-Antwerp and Antwerp rules,
published in 1908 by Bousquet under the title Commen-
taire pratique des regies WYorh et d^Anvers et de la regie
d^Anvers^ 1908?^ A very good thesis dealing with average
and maritime insurance from the point of view of conflict
of laws was published by Darmon in 1908 under the title
Des conflits des lois en Qiuvtiere d^avcmes et ccsswrances mari-
twies,^^

Law of the jj^ ^j-^jg comiectiou reference should be made to an im-
portant work on the law of the flag as the criterion for
regulation of maritime conflict of laws problems, recently
published by Dr. Jacques Eynard under the title La loi dii
pavillon.^^

Landinsur- ^hji^ maritime insurance is dealt with specifically in
the Commercial code, land insurance is not touched upon
in either the Commercial or Civil codes. As a result the
general provisions of the Civil code relative to contracts
in general, are controlling.

The best general work on the subject is that of Pro-
fessor Hemard, of Paris, TheoHe et fvatique des assurances
terrestres,^^ A very good shorter work was published in
a second edition in 1927 by Sumien under the title
Traite thearique et pratique des assurances. ^'^ Life insur-
ance was dealt with in an important one-volume work by

^^Llinas, A. Essai sur le foiiciement juridique de la contribution
pour avaries communes. Etude historique et critique. MontpeUier,
1922. 227 p.

*^ Bousquet, A. Commentaire pratique des regies d'Yorlc et d'Anvers
et de la regie d'Anvers, 1903. Paris, Larose et Tenin, 1908. 497 p.

®^ Darmon, R. Des conflits des lois en matiere d'avaries et (Va^y-
suranees maritimcs. Paris, 1908. 126 p.

^Eynard, J. La loi du pavilion. Becherche d'une regie generaie
de solution des conflits de lois en droit maritime international.
Paris, Pvecueil Sirey, 1926. 269 p.

^^ Hemard, J. Tlieorie et pratique des assurances terrestres. Paris,
Recueil Sirey, 1924-25. 2 v.

^^ Sumien, P. Traite tlieorlque et pratique des assurances terres-
tres et de la reassurance. 2. M. Paris, Dalloz, 1927. 363 p.

COMMERCIAL LAW 129

Dupuich, Asswfance-vie. Theorie et pratique ^^ and in two
larger but, perhaps, less valuable works by Lefort, TraUe
theorique et pratique du contrat d^dssfwramce sv/r la vie ®* and
Novwea%i traite de Va^suranoe sm* la me.^^ The latest im-
portant work devoted exclusively to fire insurance is that of
Droz.^^

Reference is also sometimes made to a number of older
works, which, while at one time valuable, have been replaced
by those just mentioned, particularly by that of Professor
Hemard. The Traite general des a^swrances^'^ published
by Alauzet in 1844 should be numbered among the more
important. Another important earlier text, Manuel general
des assurances^^^ by Agnel and de Corny was published in
a sixth edition in 1923. An extensive bibliography appears
in Professor Hemard's treatise (v. 1, p. 641).

As already stated, one of the principal causes for the Bankruptcy
adoption of the Commercial code was the large number of
scandalous failures which immediately brought to the fore
the necessity for revision of the then existing commercial
laws. The third book of the Code was devoted in its en-
tirety to insolvency and bankruptcy and through reaction
against the leniency of the earlier laws went to an opposite
extreme in laying down rules which were marked by an
excessive severity. As early as 1827 steps were taken for
the revision of the third book and in 1838 the existins:
legislation was completely revised. The new act was in-
corporated into the Code and, as modified in part, con-
stitutes the present legislation.

^^ Dupuich, P. Assurance-vie. Theorie et pratique. Jurispru-
dence. 2. ed. Paris, Dalloz, 1922. Uii p., 1 L, 801 [2] p.

^Lefort, J. Traits theorique et pratique du contrat d'assurance
sur la vie. Paris, Thorin & fils, 1894-1900. 4 v.

**Lefort, J. Nouveau traits de I'assurance sur la vie; doctrine,
jurisprudence, droit compart. Paris, Riviere, 1920. 2 v.

^*Droz, A. Commentaire des polices d'assurance contre le risque
d'incendie. Paris, Larose et Tenin, 1913. 197 p.

*^ Alauzet, Fr. Traits general des assurances. Paris, Cosse etj
Marchal, 1843. 2 v.

®^ Agnel, E. Manuel general des assurances, ou Guide pratique des
assureurs et assures. 6. 6d. refondue par G. de Corny et G. Dujon.
Paris, Marchal et Godde, 1923. 854 p.

130 GUIDE TO THE LAW OF FRANCE

In present French legal language there are three distinct
terms which are applicable to the situation of debtors
within the purview of the Code as modified by subsequent
legislation. The term " faillite " (insolvency) is applied
generally to traders who have failed to meet their engage-
ments. The term " hanquei'oute " (bankruptcy) is reserved
for traders who have been guilty of some act constituting a
serious misdemeanor or felony. The expression " liquidation
juddciaire'^^ (judicial liquidation) was introduced into French
law as the result of an act of March 4, 1889, and designates
the position of a debtor who, although having failed to
meet his engagements, is worthy of special consideration
because of steps taken to reveal his insolvency. It should be
remarked that the latter legislation was not incorporated
into the Commercial code and only modifies directly sev-
eral articles of the Code (arts, 438, 549, 586). Under the
legislation of 1889 the debtor who has taken the proper
steps for a declaration of his embarrassed state is permitted
to remain in possession of his property with the assistance
of a liquidator, instead of being completely dispossessed by
a trustee or receiver.

It should be remarked that the prov,isions of the Commer-
cial code and the legislation of 1889 apply only to traders.
The term " djeconfiture " is applied to the situation of non-
traders who are insolvent and unable to meet their obli-
gations.

The outstanding treatise on insolvency, bankruptcy, and
judicial liquidation is that of Professor Percerou,^^ of the
Paris Faculty. It forms a part of the Collection ThMler, In
addition, the general subject is dealt with by Professors
Lyon-Caen and Renault in both their treatise and manual,
as well as in other works on commercial law. Eeference is
also often made to a much earlier work by Renouard, Traite
des faillites et hanqneToutes^ the chief value of which to-day

®^ Percerou, P. Des faiUites, banqueroutes et liquidations judiciaires.
Paris, Rousseau, 1907-14. 2 v.

^Renouard, A, Traite des faiUites et banqueroutes. 3. ed. Paris,
GuiUaumin, 1857. 2 v.

LITERARY AND INDUSTRIAL PROPERTY 131

lies in the fact that the distinguished author took a promi-
nent part in the earlier revision of the third book of the
Code.

Kef erence should also be made to two comparatively early
works on judicial liquidation. The act of 1889 was the
subject of an important commentary by Lecomte published
under the title TraitS theorique et pratique de 1<]D liqwidation
judiciaire^^ and a somewhat less valuable study by Malapert,
Du regime de la liquidation judioiaire,^ consisting of an ex-
amination of the advantages and disadvantages of the
regime introduced by the act of 1889.

A good summary (in English) of French bankruptcy
laws * was published by Pierre Pellerin in 1907.

Commercial courts will be dealt with in the chapter on
procedure.

LITERARY AND INDUSTRIAL PROPERTY

The rules of law designed to protect creations of the
human mind, which are often designated under the gen-
eral title industrial and literary property, are dealt with
rather summarily in some of the works on civil law. They
sometimes receive treatment in works on commercial law.
But the best treatment is to be found in specialized works
dealing with such particular topics as copyright, patents,
and trade-marks.

A list of French legislative enactments with respect to
unfair competition, trade-marks, copyright, patents and
models, and designs, with a short bibliography through
1927, may be found in the fifth volume of the Bulletin de
la Societe itcdienne pour les etudes de droit industriel^ pub-

^ Lecomte, M. Traite theorique et pratique de la liquidation judi-
ciaire. Commentaire des lois du 4 mars 1889 et du 4 avril 1890.
Paris, Chevalier-Marescq, 1890. 2 p. 1., iii, 865 p., 1 1.

^ Malapert, E. Du regime de la liquidation judiciaire, de ses incon-
vgnients et de ses avantages. Paris, Larose & Forcel, 1892. 486 p.

* Pellerin, P. The French law of bankruptcy and winding up of
Umited companies. The conflict of laws arising therefrom. London,
Stevens & sons, 1907. 117 p.

General Lit-
erature

132 GUIDE TO THE LAW OF FRANCE

lished at Eome. It should be remarked that this useful
bulletin also contains a synopsis of the enactments, with
bibliographies, of the principal commercial nations.

The leading French periodical devoted to literary and
industrial property is the Annales de lu propHete hidustri-
elle^ artistique et litteraire^ founded in 1855. It has in-
cluded in its list of directors the names of Pouillet and Claro,
and is now under the direction of Maillard and Taillefer,
both specialists in the field of patent and copyright law.
The entire field of industrial, literary, and artistic property
is dealt with in the third edition of Professor Bry's Cours
elhnentaire^^ published in 1914. It should be recalled that
Professor Roubier, of Lyons, is said to be preparing a
treatis-e on industrial and literary property for the Collec-
tion Thaller {see Commercial law, supra).
Copyright Xhc legislation protecting the rights of authors of literary
and artistic works has gone through a complicated history
of successive enactments, with the result that there is at
present no single law governing the matter. The laws now
in force had their origin in certain decrees and legislative
acts of 1791 and 1793 dealing with presentations of dramatic
and musical productions and reproductions of literary and
artistic works. Subsequent laws such as those enacted in
1844, 1845, and 1866 had as their object the prolongation of
the duration of the monopoly of reproduction accorded
authors in earlier legislation. In addition, an act of March
11, 1902, extended the privileges provided under the act of
1793 to architects and sculptors. Eecent legislation (act of
May 19, 1925) made provision for special new rules with
respect to the deposit with proper government depositories
of copies of various types of artistic and literary productions.
Attention should also be called here to important legislation
enacted in 1920 establishing in favor of their authors a tax
on public sales of artistic works.

French copyright law is briefly analyzed in Copinger's
Law of copyright^ a sixth edition of which was published in

^Bry, G. Cours ^lementaire de legislation industrielle. II: La
propri^te industrielle iitt^raire et artistique. 3. ed. Paris, Larose
et Tenin, 1914. 822 p.

®Copinger, W. A. Law of copyriglit. 6th ed. London, Sweet &
Maxwen, 1927. 607 p.

LITERARY AND INDUSTRIAL PROPERTY 133

1927. The earlier editions, however, devote more space to
the laws of countries other than England, and a more exten-
sive discussion of the French legislation in existence in 1915
may be found in the fifth edition (pp. 352-368). A sum-
mary of French legislation and a bibliography may also be
found in Singer's CopyHffht laif^s of the morld^ published
in 1909 (p. 42).

There is no outstanding recent French work dealing with
the rights of authors. The best general treatise is that of
Pouillet, a specialist in the entire field of literary and in-
dustrial property. It was revised and published in a third
edition in 1908 under the title Traite theorique et pratique,^
Another good but older work is that of Huard, Traite de la
proprietS intellectuelle^ the first volume of which is de-
voted to literary and artistic productions. There is also a
recent theoretical work on the rights of authors by Eenee-
Pierre Lepaulle^^ and another by Marcel Plaisant^^ on
artistic and literary creations. In addition, the protection
of dramatic works was dealt with by Grente^^ \^ ^925,
The act of 1925 concerning deposits was commented on by
Morel 1^ in 1926.

Reference is sometimes made to a much older work,
Eenouard's Traite des droits d^auteurs^^^ the chief value of
which is, at present, historical. Bibliographic notes {of.
Aubry and Rau, v. 2, p. 259) frequently list a number of

' Singer, B. Copyright laws of the world. Chicago, B. Singer, 1909.
196 p.

'PouiUet, E. Traits theorique et pratique de la propri^t^ lit-
teraire et artistique et du droit de representation. 3. ^d. refondue
par G. MaiUard et C. Claro. Paris, Marchal et Billard, 1908.
1,000 p.

''Huard, G. Traits de la propri6t6 intellectuelle. Paris, Marchal
et Billard, 1903-06. 2 v.

''LepauUe, H. Les droits de Tauteur sur son oeuvre. Paris,
Dalloz, 1927. 430 p.

^'Plaisant, M. La creation artistique et litt^raire et le droit.
Paris, Rousseau, 1920. 135 p.

*^ Grente, M. La protection legale des oeuvres dramatiques. Paris,
Dalloz, 1925. 119 p.

"Morel, E. La loi sur le depot legal (19 mai 1925). Paris, Cham-
pion, 1925. 32 p.

"Renouard, A. Traite des droits d'auteurs dans la litterature, les
sciences et les beaux arts. Paris, J. Renouard et e*®, 1838-39. 2 v.

134 GUIDE TO THE LAW OF FRANCE

other older works, none of which, however, are of practical
value to-day.
Patents The legal protection of inventions through patents {hre-

vets d^invention) had its origin in two laws enacted by the
Constituent Assembly in 1791. The law now in force is
that of July 5, 1844, as amended by subsequent legislation,
particularly by an act of April 7, 1902. Articles 3 and 4
of an act of June 26, 1920, establish a special tax on re-
quests for patents.

In addition to the French texts, there are a number of
available sources of French patent laws. They are sys-
tematically presented in the iinx^ortant series edited b}'
Professor Kohler and Maximilian Mintz, The patent Ioajds
of all naUons^^' (v. 2, pp. 467-494). A useful summary
is contained in a recent work by Singer, Patent laws of the
world ^^ (pp. 103-116), Wallace Fairweather gives in con-
cise form a summary of French law (pp. 165-178) in his
comparatively recent work on Foreign and colonial fatent
lawsP In addition^ a very short summary is contained in
Wallace White's Patents throughout the world'^^ (pp.
45-47).

The best French vv^ork dealing with patent law is that
of Pouillet, whose work on the law of copyright has already
been referred to. The text was revised in 1915 by Taillefer
and republished in a sixth edition under the title, Trmte
des ire'vets d'invention et secret s de fabrique}^ Another
valuable work is that of Allart, Traite thsorique et fro,-
tique^^ which was published in a third edition in 1911. In
addition, attention should again be called to Huard's trea-

^^Koliler u. Mintz. Die patentgezetze aller volker (Tlie iiateiil
laws of an nations). BerUn, Decker, 1907-12. 2 v.

^^ Singer, B. Patent laws of the v/orld. 4th ed. Hammond, Ind.,
W. B. Conkey & co., 1924. 30S p.

" Fairweather. Foreign and colonial patent laws. London, Con-
stable & company, 1910. 279 p.

"White, W. W. Patents throughout the world. New York, Trade
mark law publishing co., 1923. 244 p.

^^PonlUet, E. Traite theoriqiie et pratique des brevets d'invention
et de secrets de fabrique. 6. ed. refondne par A. TaiUefer. Paris,
Marchal et Godde, 1915. 328 p.

^^ Allart, H. Traite theorique et pratique des brevets d'inventions,
3. ed. Paris, Kousseau, 1911. 694 p.

UTERARY AND INDUSTRIAL PROPERTY 135

tise on intellectual property, the second volume of which is
devoted to patent law. A very good short practical guide,
dealing in particular with the procedure to be followed in
procuring a patent, was published in 1926 by Moreaux and
Weismann.^^ A practical manual was also published by
Fernand-Jacq, a specialist, in 1914.^^ Mention should be
made of two works on scientific discoveries, one by Suzanne
Munier^^ and the other a thesis by Vigneron,^'' both pub-
lished in 1925.

Trade-marks {marquee de fahHqiie et de comwrberce) are Trade-
regulated by an act of June 23, 1857, as amended in 1873,
1890, and 1920. The best work on the subject is that of
Pouillet, Traite des marques de fabrique et de la concm*-
renee deloyale.^^ Another important treatise, Traite theo-
rique et pratique ^^ was published by AUart in 1914.

Until comparatively recently, the law protecting designs '^^^^^"^ *"*^
and models was in a rudimentary state due to the insuflSi-
ciency of earlier legislation. The entire matter is now
regulated by an act of 1909. This act was dealt with in an
able thesis by Marquis, La legislation proteotrioe des dessins
et modeless Another valuable work is that of Pouillet,
which was revised in 1911 under the direction of Taillefer
and Claro and published under the title Traite des dessvn^
et modeles?^

'^Moreaux, R., et Weismann, C. Les brevets d'invention. Paris^
Dalloz, 1926. 532 p.

^Jacq, F. Manuel pratique de la propriety industrielle et com-
merciale. Paris, Roger, 1914. 340 p.

^ Munier, S. Les droits des auteurs de d^couvertes ou d'inventions
seientifiques. Essai de pliilosophie et de teclinique juridique, suivi
d'une proposition de loi. Paris, Dalloz, 1925. 289 p.

^ Vigneron, M. Essai sur la protection de la propri^t^ scientifique;
Paris, Recueil Sirey, 1925. 90 p.

""^ Pouillet, E. Traite des marques de fabrique et de la concur--
rence d^loyale en tons genres. 6. ed. rev. par Taillefer et Claro.
Paris, Marchal et Godde, 1912. 1,358 p.

^^'Allart, H. Traits th^orique et pratique des marques de fabrique
et de commerce. Paris, Rousseau, 1914. 613 p.

"Marquis, M. La legislation protectrice des dessins et modules.
(Loi du 14 Juillet 1909.) Paris, 1909. 196 p.

^Pouillet, E. Traits tMorique et pratique des dessins et modules.
5. €d. refondue par A. Taillefer et C. Claro. Paris, Marchal et
Godde, 1911. 875 p.

136 GUIDE TO THE LAW OF FRANCE

pewtion^"' In addition to the special statutory regulations protecting
certain categories of industrial and literary property,
French law has made provision for the protection of traders
through judicial development of the doctrine of unfair com-
petition {cooicurreThce deloyale). Starting with the general
provision of article 1382 of the Civil code, providing for
compensation for a wrong done, French courts have de-
veloped a theory of delictual responsibility, which in the
main resembles that developed in the United States within
the past few years. Instead of enumerating the acts con-
stituting unfair competition in special legislation, French
law has, through the statement of a broad principle, left
the determination of the acts which give rise to a cause of
action to the discretion of the courts. There is much to be
said in favor of both systems. Enumeration makes for cer-
tainty. On the other hand, there is a possibility of courts
holding that acts not included within the listed categories
are impliedly privileged with the result that by hewing close
to the line, business rivalry may lead to tactics which, while
not reprehensible in the eyes of the law, go beyond the pale
of fair dealing. The French system has the disadvantage
of leaving the determination of unlawful acts to the arbi-
trary finding of the judge. At the same time the danger is
not as great as it might seem, since judicial decisions, while
not necessarily binding precedents, have weight and tend
to give rise to a principle or doctrine for the guidance of
courts, thus taking the matter out of the arbitrary discretion
of a single tribunal.

The latest work on the subject is Pichot's De la coTKmr-
rence deloyale et de la contrefaqon^^ which first appeared as
a thesis in 1923 and was republished in 1924. It is also dealt
with in Pouillet's Traite des marques de fahriques et de la
concui^^ence deloyale^ already referred to in connection with
trade-marks. Discussions may be found in treatises on civil
law.

Foreign rpj^g various euactmcuts dealing with industrial, literary,

Patents and ^ . . • • /• ji / i* ii

Copyright and artistic property make provision lor the protection o.i
foreigners who have taken out patents and copyrights in

"^Picliot, O. De la concurrence deloyale et de la contrefagon en
mati^re commerciale et industrielle. Paris, Rousseau, 1924. 568 p.

CIVIL PROCEDURE 137

France. Article 27 of the act of 1844 provides for the pro-
tection of patents obtained by foreigners in France, foreign-
ers being permitted also (art. 29) to patent inventions al-
ready patented in other countries. A decree of March 28-31,
1852, expressly extends the benefits of copyright laws to
foreigners. Foreign authors of designs and models seemi
only to be protected under the provisions of the act of 1909
(art. 13) if they have a domicile or industrial or commer-
cial establishment in France. The act of 1857 protects only
the trade-marks of individuals having an industrial or com-
mercial establishment in France. France is also a party to
a number of treaties and conventions concerning the protec-
tion of industrial and literary property, including the Copy-
right Union.

A good discussion of international protection of copy-
right, patents, and trade-marks may be found in Professor
Fillet's treatise on private international law.^^ Professor
Pillet is also the joint author of an earlier text on the inter-
national protection of industrial property, Regime mterna-
tional de la propriete irid^mtrielle^^ published in 1911. The
new international regime with respect to industrial property
(Hague conference of 1925) was recently dealt with by
Marcel Plaisant and Fernand-Jacq in their Le nov/veau
regiTTie international.^^

CIVIL PROCEDUEE

Strictly speakin,g, civil procedure includes only the formal
rules of law to be observed in proceedings before courts. In
this narrow sense it comprises pleading, production of proof,
pronouncement of judgment, and execution. In a wide sense
it is sometimes made to include the organization of courts.

^'^Pniet, A. Traits pratique de droit international priv^. Paris,
J. Allier, 1923-1924. 2 v.

^Fillet, A., et Chabaud, G. Le regime international de la pro-
pri^t^ industrielle, droit frangais et conventions internationales.
Grenoble, Allier f rdres ; Paris, Larose et Tenin, 1911. 511 p.

®^ Plaisant, M. et Jacq, F. Le nouveau regime international de la
propri6t6 industrieUe. (La Conference de La Haye, 1925.) Paris,
Recueil Sirey, 1927. 208 p.

138 GUIDE TO THE LAW OF FRANCE

The distinction is not without importance in French law
since judicial organization and procedure in a strict sense
are governed by separate laws.
Judicial Judicial or2:anization has received the attention of the

Organiza- . . . ^

tion legislature in France at different periods with the result

that the present sj^stem is based on a succession of laws which
are too complicated to be discussed in detail in a work of
this kind. All that can be done is to point out some of the
more important enactments.

The reorganization of the judicial hierarchy occupied the
immediate attention of the revolutionary government. The
principal enactment is that of August 16-24, 1790, through
which the Constituent Assembly broke entirely with the past
by abolishing the existing courts and establishing a new
regime which forms the fundamental basis of that now in
existence. Under the convention the admirable organiza-
tion of the Constituent Assembly was destroyed by the par-
tial abolition of courts through the substitution of arbitra-
tion in a number of cases, but the directorate reestablished in
part the prior system with important modifications. It was
under the Consulate that the judicial organization of France,
which remained in effect until 1926, took place; since then
the important legislation includes an act of 1810, relating to
judicial organization and administration of justice, a law
of 1883, dealing with certain reforms, a lavv of April 28,
1919, and a decree of September 6, 1926. The act of 3919
had as its principal purpose a reduction in the number of
magistrates with a view to an increase in the remuneration
of those still forming a part of the general hierarchy. The
decree of September 6, 1926, carried into effect the financial
legislation of August 3 of the same year and in reducing ma-
terially the number of courts brought about the greatest
single change in general organization which has been made
since the first Empire.

The present hierarchy includes tribunals of the first in-
stance {tribunaux de fTerrdere instcmce)^ justices of the peace
{juges de paix), commercial courts {tribunaux de eoTJh-
merce)^ courts for the arbitration of labor disputes {Conseils
de prvd'^hoinmes) ^ courts of appeal (cours d^appel)^ and the
Court of Cassation {Cour de Cassation), In addition, there

CIVIL PROCEDURE 139

are special administrative courts which will be discussed
in the chapter on public law.

The " tribunal of the first instance " is the court having inferior
general original civil jurisdiction. Justices of the peace
were created by the revolutionary regime and now have
limited jurisdiction as fixed by law. Commercial courts are
the only tribunals existing at present which antedate the
revolutionary regime. Maintained by the law of August
24, 1790, and regulated by the Commercial code (art. 614
et seq,) and an act of 1883, they have jurisdiction of mat-
ters relating to transactions of merchants. They only sit
in such centers as are designated by the Council of state,
and, where there is no commercial court, commercial mat-
ters are heard by a tribunal of first instance. As brought
out by Paul Fuller, of the New York bar (12 Columbia
Law Eeview, 145), their retention had as its basis two
underlyin^g principles : Merchants as specialists are best
fitted to judge their own affairs. The interests of business
require that commercial disputes be withdrawn from the
delays of ordinary litigation. A short but very good ac-
count of French commercial courts may be found in an
article by B. H. Conner, of the New York bar (17 Green
Bag 304.) A good discussion also appears in Goirand's
English treatise on French commercial lom^ already men-
tioned in the chapter on commercial law. They are also
dealt with in French works on commercial law as well as
in those devoted to procedure. Courts for the arbitration
of labor disputes {Oo^seils de frucVhoTYmies) have jurisdic-
tion of difficulties between individual employers and work-
men arising out of the contract of employment in the dif-
ferent branches of industry and commerce. The modern
institution dates from Napoleon's visit to Lyon in 1806.
Since then they have become general and at present are
governed by a law of March 27, 1907, as modified principally
by a law of July 3, 1919, and a law of March 30, 1920, now
incorporated in the labor and social code.

The Court of Cassation is the court of last resort, and to court of
use a Gallicism, it has as its mission the supervision of the ^^^*^^^
exact interpretation of the law by other courts. Due to its
position as the highest court in the French judicial hierarchy
49926°— 31 10

140 GUIDE TO THE LAW OF FRANCE

it is sometimes referred to as the Supreme court. The court
is divided into three chambers — Ghamihre des requetes^
Ghamhre civile^ and Chambre criTninelle. The Ghamhre des
requetes examines all civil cases brought before the court
and determines whether they are based upon sufficient merit
to go before the Ghambre civile. If it concludes that they are
not, the request for review is rejected. The outstanding
merit of the system is the lightening of the burdens of the
Ghamhhre civile^ which only examines such cases as are based
upon some meritorious claim. The Ghambre crkninelle
passes on cases which are brought before it from the lower
courts under the provisions of the Code of criminal proce-
dure (arts. 416 et seq,).

The organization and history of tlie Court of Cassation,
as well as the procedure in resorting to it, were dealt with
by Crepon ^^ in a 3-volume work which was originally pub-
lished as a part of the Repertoire du droit frangcds. It was
separately published in 1892. Another important but
shorter work dealing with the powers and jurisdiction of the
court, as well as the procedure in civil matters, is Faye's
La Gour de Gdssation.^^ The special functions of the Ghairb-
hre des requetes also received valuable separate treatment in
an interesting thesis, La Ghambre des reqvstes de la Gour de
Gassation^^ which was published by Houyvet in 1906.

In addition, mention should be made of a very good thesis,
Morillot's La Gour de Gassaiion^ Gonseil superieur de la
magistrature^^ dealing with the important disciplinary
jurisdiction over the general magistracy, conferred on the
Court of Cassation as the result of an act of 1881.

^Cr6pon, T. — Cour de Cassation. Origines, organisation, attribu-
tions. Du pourvoi en cassation en mati^re civile. Paris, Larose et
Forcel, 1892. 3 v. (Extr. Repertoire g§n6rale alphab^tique du droit
fran^ais.)

^ Faye, B. La Cour de Cassation ; traits de ses attributions et de
sa competence et de la procedure observ^e en matidre civile. Paris,
Chevalier-Marescq, 1903. 728 p.

^^ Houyvet, H. La Chambre des requites de la Cour de Cassation.
Paris, 1906. 187 p.

^Morillot, A. La Cour de Cassation, conseil sup^rieur de la mag-
istrature. Paris, 1910. 152 p.

CIVIL PROCEDURE 141

Unfortunately there is no good special modern French ^^^j"^^*"^^!
work dealing with judicial organization in general, but most organiza-
of the treatises devoted to procedure, which will be referred *^°^
to presently, discuss the subject in detail. It might be ad-
visable, however, to mention at this point a number of
works dealing with reform of the French judicial organiza-
tion. The changes made under the Constituent Assembly
received excellent treatment in a thesis by Giraud which
was published in 1921 under the title VOeuvre d'^orgcmisa-
tion judiciaire de VAssemblee nationale constitucmte,^'^ Ju-
dicial reform, particularly with reference to the question Reform
of the establishment of a single judge, instead of the present
system of several judges sitting together, was dealt with by
Leroy in a thesis, Le juge unique.^^ Dr. Leroy's thesis
deals not only with the system in vogue since the Eevolu-
tion but also with the historical and comparative phases
of the much mooted question of the advisability of adopting
the Anglo-American system of a single judge. Another
outstanding and m.ore recent thesis dealing with the same
question is Pige's Le juge unique et le statut de la magistra-
ture en FranceP Dr. Pige's thesis also gives some idea
of the present system of recruiting judges who, in France,
are members of a special profession and are not recruited
from the bar after long practice as is the case in England
and the United States. In connection with reform of the
magistracy, reference should also be made to a short work
by Malepeyre, La nmagistvature en Fram.ce et projet de
reforme,^^ which though published in 1899 may still be read
with interest.

There are a number of English sources dealing with
French judicial organization. A good summary was pub-
lished by Henri Goirand in 1919 under the title The French

^Giraud, E. L'oeuvre d'organisation judiciaire de TAssembl^e
nationale constituante. Les juges. Paris, 1921. 116 p.

'* Leroy, G. Le juge unique et la r^forme de notre organisation
judiciaire. Paris, 1907. 230 p.

^Pig6, B. Le juge unique et le statut de la magistrature en
France. Paris, Sagot, 1925. 308 p.

*" Malepeyre, F. La magistrature en France et projet de r^forme.
Paris, FasqueUe, 1900. 276 p.

142 GUIDE TO THE LAW OF FRANCE

judici-ol systeniJ"^ A reprint of a paper on the French ju-
diciary and bar, read in Inner Temple Hall in 1911 by Eman-
uel Underdown, is also worth consulting.-^ An informa-
tive article by Charles Gans appeared in the Juridical Ke-
view for 1903 (v. 15, p. 362). Another valuable discus-
sion, by Professor Walton, of Magill University, was pub-
lished in the Law Quarterly Eeview for 1903 (v. 19, pp.
263 and 402). The second part deals with the relation of
the Ministry of Justice to the administration of civil and
criminal justice as well as with the French bar. Professor
Garner, of the University of Illinois, is the author of an
article in the Yale Law Journal (v. 26, p. 347, 1917) deal-
ing with such subjects as plurality of judges, the excessive
number of judges in France, their appointment and promo-
tion.
Procedure Rulcs of proccdure are largely contained in the Code of

civil procedure {Code de froeedure civile).
History While the evolution of the present court system in France

began with the legislation of the revolutionary regime, civil
procedure has a much older history. The immediate source
of the rules contained in the present Code was in large part
the legislation of 1667, already mentioned in the chapter on
legal history, but, as brought out in the historical introduc-
tion of the recent treatise on civil procedure by Professors
Glasson and Tissier (infra) ^ the ultimate sources are the pro-
cedural rules of the canon and feudal courts of the Middle
Ages, which in turn are of Roman and Frankish origin.
Adoption of Professors Glasson and Tissier also give some account of
Svi?pto^^ the adoption of the Code. The procedure followed was much
cedure the Same as that in adopting the Civil code. The commis-
sion charged with its preparation consisted of five members
all of whom were closely connected with the courts or
practice. Treilhard was a former lawyer and president of
the Paris Court of Appeals. Pigeau, also a practicing
lawyer, wrote extensively on procedure, and, it is interesting

"^ Goirand, H. The French judicial system and procedure in French
courts. London, Stevens and sons, 1919. 51 p.

^Underdown, E. M. The French judiciary and bar. [London]
Printed by order of the masters of the bench of the honorable
Society of the Inner Temple, 1911. 39» p.

CIVIL PROCEDURE 143

to note, later became professor of procedure at the Paris
faculty. Sequier was a former magistrate, Berthereau presi-
dent of the Seine tribunal, and Try a lawyer. After its
preparation the project of the commission was discussed by
the Council of State and then placed before the tribunat
and Legislative Assembly. Although definitely voted in

1806, the Code did not become effective until January 1,

1807. Since its adoption it has undergone surprisingly few
changes.

The Code itself consists of two parts. Part 1 is entitled
Procedure devant les tribunoMX^ and is divided into five
books comprising 811 articles. The different books are
entitled, De la justice de paix^ Des trihunaux inferieurs, Des
tribunaux d^appel^ Des voies extraordinaires pour attaquer
les juge^rnents^ De Vexecution des jugements. The second
part, comprising articles 812 to 1042, is entitled Procedures
diverses. It is divided into three books and the subject
matter dealt with includes ex parte proceedings, opening of
successions, and arbitration.

Of the different annotated editions of the Code, that pub- Annotated
lished by Dalloz,^^ besides being an excellent piece of work, ^^^^^°^
has the advantage of recent publication. Of the other two
important annotated codes, that of Tissier, Darras, and
Louiche-Desfontaines,^^ which is published by the Recueil
Sirey^ is usually considered to be better than that cited under
the name Sirey and^^ published by Marchal and Billard.
The best pocket edition is that published by Dalloz."*^ That
published by Sirey and cited under the name Carpentier ^"^
is also important.

*^Dalloz. Nouveau Code de procedure civile annot6 et expliqu^
d'apres la jurisprudence et la doctrine, par G. Griolet, C. Verg^
et St. de Lanzac de Laborie. Paris, Dalloz, 1910-22. 4 v.

^Tissier, A., Darras, A., et Louiche-Desfontaines. Code de pro-
cMure civile annot^. Paris, Recueil Sirey, 1901-04. 2 v. Supple-
ments. 1908. 396 p.

*° Sirey, J. Les codes annot^s de Sirey. Code de procedure civile.
4. ed. Paris, Marchal et BiUard, 1905-06. 2 v.

'^'^ Dalloz. Code de procedure civile. Paris, Dalloz, 1928. 523 p.

*^ Carpentier, A. Code de procedure civile. Paris, Recueil Sirey.
1926. 673 p.

144 GUIDE TO THE LAW OF FRANCE

General During the now more than a century since its adoption

Literature ^j^^ Code of civil procedure has been the subject matter
of an extensive literature which is too vast in proportion
to its importance to receive detailed discussion. There are,
however, a number of works which, though largely replaced
by those of more recent date, deserve to be mentioned.
Professor Pigeau, who, as has already been stated, was one
of the members of the preparatory commission, wrote ex-
tensively on procedure both before and after the adoption
of the code. His works, such as the C (rmjmentaire sur le
Code de 'procedure civile ^^^ and La procedv/re civile des tri-
iunaux de Frcmes^^ are still of value, not only for historical
purposes but also as sources of interpretation. The Cows
de procedure civile ^^ of Rauter, though published in 1834,
long enjoyed a reputation comparable with that of Aubry
and Rau in civil law. Rodiere, an extensive writer on pro-
cedural matters, left a very good work in his Lois de la
competence et de la procedure en nvo^iere civile, ^^ Refer-
ence is also sometimes made to Elements d^ organisation judi-
daire, de procedure civile et de droit penal ^- by Ortolan and
Bonnier, which, though now of little practical importance,
was very well done. In connection with the older works
mention should also be made of an early critical philosophi-
cal study by Bordeaux which was published in 1857 under
the title PMlosophie de la procedure eivile,^^ Other works
to which reference is sometimes made, but which are no
longer of practical value, include the commentaries and

"** Pigeau. Commentaire sur le Code de procediue civile, revu par
Poncelet et Lucas-Championniere. Paris, 1827. 2 v.

** Pigeau. La procedure civile des tribunaux de France. 5. ^d. par
J. L. CriveUi. Paris, Roret, 1828. 2 v.

^Rauter. Cours de proc<5dure civile. Paris, Berger-Levrault, 1834.
465 p.

''^ Rodiere, A. Exposition raisonn^e des lois de la competence et de
la procedure en matlere civile. 2. ed. Toulouse, Delboy, 1855-57.
3 V.

°^ Ortolan, E., et Bonnier. Elements d'organisation judiciaire, de
procedure civile et de droit p^nal. Paris, Plon, 1858. 3 v.

^ Bordeaux, R. PMlosophie de ia procedure civile. Paris, Durand,
1857. 615 p.

CIVIL PROCEDURE 145

treatises of Thomines-Desmazures,^^ Berriat Saint-Prix,^^
Carre and Chauveau,^^ and Boncenne.^^

Turning now to modern texts we find a somewhat more
limited field to choose from. The Trcdte theorique et
pratique ^^ by Professors Glasson and Tissier, when com-
pleted, will probably be the best general work. At present
three volumes have appeared. The publication of the third
and fourth having been interrupted by the unfortunate
death of Professor Tissier, their preparation was con-
tinued by Professor Morel, of the Paris faculty, whose
reputation in procedural matters is the equal ox that of his
predecessors, Glasson and Tissier, who were long identified
with the teaching of procedure in France. Professor Glas-
son was responsible for the revision of Professor Boitard's
Legons de procedwre civile,^^ which were originally pub-
lished by de Linage and later continued by Professor Col-
met-Daage. The popularity of this latter work is attested
by the fact that it was published in a fifteenth edition in
1890. Professor Tissier revised a 2-volume Precis fheorique
et pratique de procedure civile ^^ originally written by Pro-
fessors Glasson and Colmet-Daage. This latter work was
in turn a revision of the earlier lessons by Boitard and was
published in a second edition in 1908. The treatise now

^* Thomines-Desmazures. Commentaire sur le Code de procedure
civile. Paris, 1832. 2 v.

^^ Berriat Saint-Prix, J. Cours de procedure civile. 7. ed. Paris,
Plon ; Chevalier-Marescq, 1858. 2 v.

^Carr6 et Chauveau. Lois de la procedure civile et commerciale.
5. ed. Paris, Marchal et Billard, 1880-1886. 11 v. in 13 including a
Supplement by G. Dutruc.

®' Boncenne, P. Introduction h I'^tude de la procedure civile. 2. 6d.
Paris, Cosse et Marchal, 1859. 635 p. Boncenne et Bourbeau.
Th^orie de la procedure civile. 2. 6d. Bruxelles, Bruylant, 1838-63.
7 V.

** Glasson, E., Tissier, A., et Morel, R. Traits th^orique et pratique
d'organisation judiciaire, de competence et de procedure civile. 3. 6d.
Paris, Recueil Sirey, 1925-29. 4 v. 3 v. published.

** Boitard, J. Lemons de procedure civile, pub. par G. de Linage,
continues par G. Colmet-Daage. 15. ^d. refondue par E. Glasson.
Paris, Pichon, 1890. 2 v.

*'*' Glasson, E., et Colmet-Daage, P. Pr^is th^orique et pratique de
procedure civile. 2. M., rev. par A. Tissier. Paris, Pichon et
Durand-Auzias, 1908. 2 v.

Form
Books

146 GUIDE TO THE LAW OF FRANCE

being published, while having a close connection with the
earlier treatises, is a complete revision and will include or-
ganization of courts, jurisdiction, and procedure properly
speaking.

Another almost as important and somewhat larger trea-
tise is that of Professors Garsonnet, at one time dean of the
Paris Law School, and Cezar-Bru, of the University of Aix,
Traite theoTiqwe et pratique de procedmf'e civile,^'^ A third
edition, which consists of nine volumes, was published be-
tween 1912 and 1925. At present it is the only completed
extensive modern work of outstanding value.

The best short work on procedure is probably the Precis
de fTOcedAire civile ^'^ by Professors Garsonnet and Cezar-
Bru. A very good short elementary text designed primarily
for the use of students is Professor Cuche's Precis de pro-
cedure civile et commerciale,^^ Another, more scholarly,
one- volume treatise was published by Professor Japiot, of the
Caen faculty, in 1916 under the title Traite elementaire de
jyrocedv/re civile et commerciale,^^ This latter treatise, now
in a second edition, is a continuation of an earlier important
work on judicial organization, jurisdiction, and procedure
which was published in a third edition by Professors Bon-
fils and Beauchet in 1901.

In connection with the texts on procedure some mention
should be made of the more important form books. Of
these probably the best is that cited under the name Eaviart,
Fomvidaire de> procedure gerierale^^ published in 1926. An-
other important work of the same type is that of Chauveau

"Garsonnet, E., et Cezar-Bru, 0. Traite theorique et pratique de
procedure civile et commerciale. 3. 6d. Paris, Recueil Sirey, 1912-
1925. 9v.

^ Garsonnet, E., et C4zar-Bru, C. Precis de procedure civile. 9. M.
Paris, RecueU Sirey, 1923. 803 p.

*^Cuclie, P. Precis de procedure civile et commerciale. Paris,
Dalloz, 1925. (Petits precis Dalloz. Hee Legal education. Page 31,
note 57.

^ Japiot, R. Traite elementaire de procMure civile et commerciale.
2. M. Paris, Rousseau, 1928. 742 p.

^^Raviart, E., Raviart, O. et Raviart, J. Traite-formulaire de pro-
cedure g^n^rale, civile, commerciale, criminelle et administrative.
Paris, Juris-classeurs, 1926. 2 v.

CIVIL PROCEDURE 147

and Glandaz, ForrmHaire general et complet.^^ Both works
give the forms applicable for commercial and administra-
tive procedure as well as for civil procedure.
Kef erence should also be made to an important encvclo- ^^fycio-

... r . " pedias

pedia or dictionary of procedure, Dictionnaire theoHque et
pratique ^"^ which though published by Rousseau and Laisney
in 1886-96 is still considered an important practical work.

There is no special periodical devoted to procedural mat-
ters. Interesting articles touching upon procedure and judi-
cial organization appear from time to time in the important
periodicals devoted primarily to civil law. Mention might
be made in this connection of a special collection report-
ing court decisions and legislation concerning procedural
matters, published before the war under the title Reeueil
pemodique de legislation et de jurisprudence en matiere de
procedure. Its publication began in 1880, and it appeared
monthly.

Jurisdictional questions, which are often among the most Jurisdic-
subtle and difficult of application, are dealt with in the dif-
ferent treatises and manuals on procedure which have just
been mentioned. In addition, a number of particular prob-
lems have received treatment in several important theses
which are well worth mentioning.

In France, as in other countries, the jurisdiction of a
particular court may depend on jurisdiction of the parties
or of the subject matter of the cause of action. In civil ac-
tions the underlying theory of personal jurisdiction is con-
tained in the maxim Actor sequitur forum rei. In principle
the competent court is that of the domicil of the defendant.
There are, however, a number of exceptions. The principal
positive source of the underlying principle and its exceptions
are the provisions to be found in article 59 of the Code of
procedure. In commercial matters the plaintiff is allowed
greater latitude. He may sue the defendant at the domicil

^Chauveau, A., et Glandaz, M. Formulaire g^n^ral et complet de
procedure civile, commerciale et administrative, annote. 11. §d.
Paris, Marchal et BiUard, 1924. 2 v.

^Rousseau et Laisney. Dictionnaire th^orique et pratique de pro-
cedure civile, commerciale, crlminelle et administrative. 2. ^d. Paris,
Rousseau, 188^96. 10 v.

148 GUIDE TO THE LAW OF FRANCE

of the latter, at the place where the promise was made and
goods delivered, or the place where payment is to take place.
The principal provision is 420 of the Code of procedure.
Waiver of Jurisdiction of the subject matter is sometimes designated
^^""^ ^^' in French legal works as jurisdiction ratioTie materiae. The
distinction between jurisdiction ratione Tnateriae and ratione
personae becomes of importance with respect to the question
of waiver. In principle the latter may be waived while
material jurisdiction may not, the classical theory being that
the former jurisdiction is relative while the latter is absolute.
Waiver of jurisdiction received treatment in two important
theses — the first, in order of time, by Lebas, La prorogation
de juridiction en Tnatiere dvile^^ which was published in
1904, and the second, by Delor, La prorogation conventionelle
de jwndiction en matiere civile.^^ Reference should also be
made to an important thesis, consisting of a critical study
of the classical distinction between absolute and relative ju-
risdiction, which was published in 1919 by Valin under the
title, Etude critique de la distinction de Vincompetence
dbsolue et de VincompStence relativeJ^ Article 420 of the
Code of procedure, dealing with commercial jurisdiction,
was also the subject of a critical study by Bonnet in 1912 in
a thesis entitled, " Etude critique de V article 4^0 du Code de
proceduce civile?^
Actions by BcfoTc passiuof ou to proof, attention should be called to

£ind £i&r£iinst

Forei5,-ners the important provision of article 14 of the Civil code deal-
ing with actions brought by French citizens against for-
eigners. Suits by and against foreigners will be discussed
in the chapter on private international law {infra).

Evidence rpj^^ Frcuch lawycr is fortunate enough not to be troubled
by the intricate rules of evidence which form a part of the
legal system prevailing in common-law jurisdictions. While

*^ Lebas, G. De la prorogation de juridiction en matiere civile.
Paris, Rousseau, 1904. 175 p.

*° Delor, L. La prorogation conventionelle de juridiction en matiere
civile. Paris, Pedone, 1911. 128 p.

^"^ Valin, J. Etude critique de la distinction de I'incompeteuce ab-
solue et de Tincompetence relative en matiere civile. Dijon, 1919.
217 p.

'^Bonnet, L. iStude critique de Particle 420 du Code de procedure
civile. Lyon, 1912. 155 p.

CIVIL PROCEDURE 149

proof in England and the United States is primarily oral, in
France in civil matters it is primarily documentary, oral
testimony being exceptional. As stated by Professor Capi-
tant in his Introduction a V etude du droit civil (p. 426) "it
is generally admitted that the prohibition of proof by wit-
nesses is a fundamental rule of ' our procedure.' It is only
permitted in such cases as are provided for by positive law."

In the French legal system the general principles of proof,
or better, methods of proof, are a part of civil law, being reg-
ulated by the Civil code (art. 1315 et seq,) in connection
with the law of obligations. Procedural rules intervene
with respect to the administration of proof before courts of
justice {cf. Code of civ. proc, arts. 252-295, 407-414).

The general theory of proof was summarized by Professor
Capitant in his Introduction a Vetude du droit dviU^ In
addition, the subject is dealt with in various treatises on civil
law as well as, in part, in works on procedure. Though now
somewhat old, the leading individual work is that of Bonnier,
Traits theorique et pratique des preu/oesP Professor Mo-
hamed Sadek-Fahmy, of Cairo, is the author of a valuable
comparative study of proof under the legal systems pre-
vailing on the Continent, in England, and in the Orient
which gives some notion of the contrasts between the Anglo-
American and French theories. Professor Sadek-Fahmy's
work was published in 1923 in the form of a thesis under the
title Le fait pertinent et adnwissihle dans ses rapports aveo
la theorie generale des preuvesJ^ Legal presumptions and
burden of proof received treatment in two theses — Theorie
generale des presomptions legates en droit prive^^ by Aron,
and Essai d'^une theorie de la charge de la pr&wveif^ by

■^^ Capitant, H. Introduction a I'etude du droit civil. 4. gd. Paris,
Pedone, 1922. 455 p.

'^^ Bonnier, E. Traite th4orique et pratique des preuves en droit
civil et en droit criminel. 5. ed. rev. par F. Larnaude. Paris, Plon-
Nourrit, 1888. 707 p.

'* Sadek-Fahmy, M. Le fait pertinent et admissible dans ses rap-
ports avec la theorie generale des preuves comme 414ment probatoire
en droit civil compare. Paris, Dalloz, 1923. 363 p.

^*Aron, G. Theorie g^n^rale des pr^somptions l^gales en droit
priv6. Paris, Pedone, 1895. 182 p.

"^^ Th6nevet, J. Essai d'une theorie de la charge de la preuve en
mati^re civile et commerciale. Lyon, Legendre, 1921. 285 p.

160

GUIDE TO THE LAW OF FRANCE

Execution

Appellate
Procedure

Thevenet. An excellent discussion, in English, of the
French law of evidence was published by Oliver Bodington,^'
of the Inner Temple, in 1904

Attention should be called to the fact that the notary plays
an important part in connection with proof as he prepares
instruments under seal {aetes authentiques) which are the
highest form of documentary proof. Notarial practice will
be referred to in connection with the discussion of the French
legal profession (infj^a).

Due to the fact that execution is not included in the
usual university course on procedure but forms a part of
a separate optional course, several students' manuals deal-
ing with the subject have been published. TVhile these
manuals make no pretense of being other than students'
works, they are valuable sources of information as to exe-
cution under French law. These texts, which are all of the
same type and approximately of the same value, include
Professor Cezar-Bru's Theorie et pratique des votes dPexS-
cution^^^ Professor Cuche's Precis des voies d^execniiion^^^
and Josserand's Precis des voies d^execution.^^ The last is
in substance a seventh edition of a similar work by Profes-
sor Garsonnet, the sixth edition of which was revised by
Professor Josserand and published under the title Traite
elerrmntaire des voies d^execvMon?^

Before passing on to a discussion of the French bar it
should be stated that actions and exceptions seem to have
received no important treatment other than that contained
in the general works on procedure. The same might be
said of appellate procedure. The only work covering the

" Bodington, O. An outline of the French law of evidence. London,
Stevens and sons, 1904. 199 p.

^^Cezar-Bru, C. Theorie et pratique des voies d'execution. 3. 6d.
Paris, Rousseau, 1927. 515 p.

^°Cuclie, P. Precis des voies d'execution. Paris, Dalioz, 1926.
Petit Precis Dalloz. Hee Legal education. Page 31, note 57.

^° Josserand, L. Precis elementaire des voies d'execution. Paris.
Recueil Sirey, 1925. Collection La Licence en droit. Bee Lep;al edu-
cation. Page 31, note 58.

^^ Garsonnet, E. Traite elementaire des voies d'execution. 6. ^d.
rev. par J. Josserand. Paris, Recueil Sirey, 1920. Collection La
Licence en droit, ^ee Legal education. Page 31, note 58.

CIVIL PROCEDURE 151

latter is that by Crepon, Traite de Vappel en Tnatiere eivile,^^
which, like his work on the Court of Cassation, was origi-
nally published in the Bepertoire general du droit fran^ais.
Having been separately published in 1888, it is now some- '

what superannuated.

American lawyers are, of course, familiar with the dis- ^^^g^^^^''^"
tinction between the English solicitor and barrister. A avou6.
somewhat similar division exists in France, where the func- ^f ^""^V

' Advocate

tions of written pleading and argument are performed by
different individuals. The avoue^ who is a ministerial offi-
cer and not a member of the bar, is, with certain exceptions,
alone authorized to prepare the pleadings (postulation) ,
The avocat makes the argument before the court {plaidoi-
rie) and is also authorized to give legal advice to his client.
In addition, the notary who, like the avoue^ is a public
officer, performs many of the functions of the American
lawyer and English solicitor. His primary duty is to pre-
pare and preserve deeds {actes authentiques) ^ of which he
is legal custodian. He is also employed for other purposes,
such as the drawing of wills in authentic form. Indeed, he
might be compared with the English family solicitor, as he
is consulted on a number of private matters such as mar-
riages, sales and purchase of property, and investments.
A short discussion of the French notary and his functions
in preparing instruments under seal may be found in
Planiol's elementary treatise on civil law (v. 2, p. 47).
Professor Planiol also gives an extensive bibliography of
the literature covering notarial practice. Mention might be
made here of the latest form books. These include Amiaud's
Traite formvlaire^^ and Defrenois' Traite pratique et for-
mulaire?'^ There is also a smaller form book by Def renois.^^
The different branches of the French legal profession
were discussed by Professor Walton in the article on Or-

*' Crepon, T. Traite de I'appel en matiere civile. Paris, Larose et
Forcel, 1888. 2 v.

^^Amiaud, A. Traite formulaire general alphab^tique et raisonn^
du notariat. 7. ^d. Paris, Journal des notaires, 1923-26. 5 v.

^* Defrenois, C. Traite pratique et formulaire general du notariat.
Nouv. ed. rev. et mis au courant. Paris, Defrenois, 1925-26. 5 v.

'"^ Defrenois, C. Petit formulaire du notariat. 7. 6d. Paris, De-
frenois, 1925. 674 p.

152 GUIDE TO THE LAW OF FRANCE

ganization of justice m France^ already referred to (Law
Quarterly Review, v. 19, pp. 402, 409). Like the English
solicitor the French avoue and notary are not members of
the bar. But as brought out by Professor Vf alton, while
in England the bar is essentially^ a London bar, in France
the bar of Paris, though the largest, is only one of many,
each having a separate government.

There are a number of sources of information in English
concerning the French bar. The article by Professor Wal-
ton, just mentioned, seems the most informative. An inter-
esting historical sketch, with biographical notices of the
leading advocates of the early nineteenth century, was pub-
lished by Young ^^ in 1869. A less valuable historical sketch
by Cox-Sinclair appeared in the Law Magazine and Review
for 1906 and 1907 (v. 31, p. 171; v. 32, p. 406). The
articles by Paul Fuller of the iSTew York bar in the Yale
Law Journal (v. 16, p. 457; v. 23, p. 113) are of interest.
Reference might also be made to a reprint of an address by
Mr. FuUer,^^ made before the New York bar in 1913.

The organization of the bar, the qualifications for ad-
mission, and the rules regulating the conduct of advocates
are dealt with in French works on procedure. There are
also several important works devoted solely to the bar. The
best for the bar as a whole is that of Appleton, Traite de
la profession dJ'avocat^^ in which the writer also gives a valu-
able expose of the requisites for admission in different coun-
tries in Europe and America as well as those for admission
in France. A very good work on the Paris bar was recently
published by Payen and Duveau.^^ In addition, mention
should be made of a thesis dealing with the role of a lawyer
in criminal matters, published by Saillard under the title

^ Young, A. An Mstorical sketch of the French bar from its origin
to the present day. Edinburgh, Edmonston, and Douglas, 1869. 279 p.

"FuUer, P. The French bar; address before the Association of
the Bar of the City of New York. New York, G. P. Putnam's sons,
1913. 46 p.

** Appleton, J. Traits de la profession d'avocat. 2. M. Paris,
DaUoz, 1928. 717 p., 1 1.

^ Payen, F., et Duveau, G. Les regies de la profession d'avocat
et les usages du barreau de Paris. Paris, Pedone, 1926. 536 p.

LABOR AND SOCIAL LEGISLATION 153

Le role de Vcwocat en wMwre crimiTvelle,^ Henri Eobert, an
outstanding member of the Paris bar and member of the
Academy, is the author of a short work in popular style, en-
titled Vavocat,^''^

No discussion of the literature relating to the French bar
would be complete without some reference to the early work
of Dupin and Camus wliich is in substance a fifth edition
of Lettres sur la profession d?avocat^^ originally published
by Camus. The first volume contains a history of the early
French bar, a dialogue between Loisel and members of the
earlier bar, and the letters of Camus on the profession of a
lawyer. The second volume contains a valuable bibliography
of the then existing French and foreign legal works. As
stated in the chapter on legal history, it is one of the valu-
able bibliographical sources of pre-code legal literature.

LABOR AND SOCIAL LEGISLATION

Labor and social movements in France have followed
closely the political changes which have taken place dur-
ing the course of the last century. Further, the movements
have largely constituted a struggle between traditional in-
dividualism on the one hand and collectivism and state inter-
vention on the other.

1789 to 1841 was a period of individualism during which Evolution
the accepted doctrines were those of non-intervention by the Legislation
state, prohibition of combinations, and "liberty to work"
{liberie du travmX). The spirit of the times is reflected in
the legislation of March 2-17, 1791, abolishing guilds, and
the loi Chapelier forbidding trade associations and punish-
ing persons taking part in strikes and lockouts as well as
those becoming members of trade-unions. Likewise, the
Penal code in articles 414r-416 prohibited coalitions of em-
ployers or workmen and in articles 291-294 forbade associa-
tions of more than 20 persons. The Civil code practically

^ Saillard, P. Le role de I'avocat en mati^re criminelle. Paris,
Larose et Tenin, 1904. 244 p.

""* Robert, Henri. L'avocat. Paris, Hachette, 1923. 129, [3] p.

'^ Camus, A. Profession d'avocat revue par Dupin. 5. 6d. Paris,
War4e, 1832. 2 v.

154 GUIDE TO THE LAW OF FRANCE

ignored labor. The labor contract was assimilated to the
contract of hire; but, while the hire of things (bailments)
was regulated in detail, hire of labor and industry was
dealt with in only a few articles (1779-1799), and of these
only two were devoted to labor (1780-81). The insuiS-
ciency of the Code is dealt with in the general works on
labor law which will be mentioned presently and in the
various works concerning legislative developments after
1804, already mentioned in connection with the discussion
of the Civil code. Professor Morin's La revolte des faits ^-
gives a good exposition and the Civil code and the work-
ing classes are the subject of an article in the Livre du cen-
tenaire.

An important innovation was the reestablishment by Na-
poleon in 1806 of the Oonseils de frud?ho7mms to arbitrate
differences between individual employers and workmen
(infra Labor disputes), but, in the main, what little state
interference there was, was hostile to labor. The current
thought of the period was founded on the doctrines of Adam
Smith, Malthus, Eicardo, and Say, which, whether contain-
ing the optimism of a Smith or the pessimism of a Malthus
or Eicardo, naturally led to a theory of the futility of at-
tempting through legislation to change the workings of nat-
ural laws.

The first step in state intervention in favor of labor was
taken in 1841 through the enactment of modest legislation
regulating the employment of children.

The Eevolution of 1848 was preceded by a number of ideas
emanating from Saint-Simon, Fourrier, Considerant, and
Louis Blanc, the dominant ones being the " right to work ''
of Fourrier and Considerant, and mutual cooperation and the
Ateliers soowmx of Louis Blanc. The Eevolution itself was
the result of a coalition of the laboring and middle classes,
and the provisional government was friendly to labor. While
the National Assembly was less friendly, ground was gained
in legislation regulating hours of labor (the second instance
of state intervention in favor of labor) and in temporary

•^Morin, G. La revolte des faits contre le Code. Paris, Grasset,
1920. 254 p.

LABOR AND SOCIAL LEGISLATION 155

recognition of the privilege of association and coalition;
the latter privileges were, however, soon lost.

The government of Napoleon iii. began as a movement
of reaction, but during its second decade it became neces-
sary to conciliate the rising tide of opposition with valu-
able concessions, the most important of which was the law
of May 25, 1864, giving the privilege of combination. At
the same time, while the influence of the labor movement
during the second half of the Empire was greater than dur-
ing any prior time after the first revolution, it was pri-
marily a period of establishment of principles, with the
ideas of Louis Blanc {Organisation du travail) ^^ and of
Proudhon {De la capacite politique) ^* predominant.

During the years immediately following the Commiune
tlie prime concern was the firm establishment of the Eepub-
lic. . After 1880, when the dangers of monarchy had been
definitely averted, a number of important reforms were en-
acted. While not directly connected with labor, the new
liberality is shown by the enactment in 1881 of a law rela-
tive to the freedom of the press. But it is with the enact-
ment of a law of March 2, 1884, legalizing unions that the
modern era of social and labor legislation began.

The year 1890 saw the enactment of laws abolishing the
labor certificate {livret ovwrier)^ authorizing a cause of
action for abrupt discharge of employees, thus remedying
a situation growing out of the construction of article 1780
of the Civil code, and of laws providing for labor partici-
pation in the supervision of safety in mines. An act of
1892 regulated labor of women and children, and in 1893
important legislation relating to hygiene, safety, and medi-
cal attention was enacted. Subsequently, in 1898, a Work-
men's compensation act was adopted.

®^ Blanc, Louis. Organisation du travail. Paris, Administration
de librairie, 1841. 224 p.

^ Proudhon, P. De la capacity politique des classes ouvri^res. An
edition with an introduction and notes was published in 1924 by
M. Le^03^ Paris, Riviere. The same publisher. Riviere, is now en-
gaged in publishing Proudhon's complete works. The collection will
comprise approximately 20 v.
49926°-— 31 11

156 GUIDE TO THE LAW OF FRANCE

At the 1898 elections, when issues were clouded by the
Dreyfus affair, the socialists, who had been gaining rapidly
in power, did no more than maintain their position. A
number of parliamentary groups united, however, under
the leadership of Millerand, who became Minister of Com-
merce in the cabinet of Waldeck-E-ousseau.

When Millerand entered on his duties, a series of revolu-
tionary strikes threatened to stand in the way of carrying
out a social program. Nevertheless, the minister proposed
to strengthen the unions and carry through a number of
important reforms for the benefit of the laboring class as
a whole. Without stopping to enumerate the various re-
forms, mention should be made of the legislation of March
30, 1900, providing for a 10-hour day.

In the two succeeding legislatures, in which the socialists
played an important and often decisive part, there was no
interruption in social legislation. Among the important
laws were those of 1904 establishing gratuitous employment
agencies and of 1905 providing aid for the aged and infirm.
Subsequently, in 1906, a Aveekly day of rest was provided for ;
1910 saw the enactment of legislation providing for social in-
surance; and more recently (April 5, 1928) an entirely new
scheme of insurance was adopted {infra) .

During the war and since its conclusion a number of legis-
lative provisions have been adopted. The more important
include an act of 1915 providing for a minimum wage for
home work and an act of 1917 establishing a 5%-day week
for workers in the clothing industry. The important
postwar legislation was that of 1919 concerning collec-
tive labor contracts, prohibiting night work in bakeries, and
extending the principles of the earlier Workmen's compen-
sation act so as to include industrial diseases. To these
enactments should be added the inauguration of the 8-hour
day. In 1920 Parliament enacted legislation enlarging the
legal capacity of unions.

It is apparent from this necessarily short survey, with
its incomplete list of enactments, that in France, as else-
where, there has been a steady march toward state interven-
tion. It is also apparent that the Third Republic is being

LABOR AND SOCIAL LEGISLATION 157

used as a vehicle for bringing about social justice through
democratic government.

The history of economic and social movements in France
has been dealt with in one form or another by a number of
French writers. Most of these works are of no particular
interest to lawyers, but reference should be made to Levas-
seur's Histoire dm classes mmrieres ®^ which gives an excellent
exposition of social movements, with their resulting legisla-
tion. Various French works on labor and social legislation,
which will be discussed presently, give historical outlines of
the development of legislation. A very good summary may
be found in Professor Scelle's Precis.^^ An interesting study
in English of the labor movement in England and France,
with a summary of legislation, is contained in Professor
Pipkin's recent work, The idea of social justice.^'^

French labor and social legislation has been fragmentary, sodaiand
with the result that the multitude of laws has been spread
among legislative enactments adopted from day to day with-
out any coordination. Following the example of other con-
tinental countries, steps were* taken in 1901 — through the
establishment of an extra-parliamentary commission for
that purpose — for the compilation in one body, in the form
of a code, of social and labor legislative provisions. After
four years of labor this commission prepared a social and
labor code {Code du travail et de la prevoyance socicde)
intended to consist of seven books, of which the first four
have been definitely adopted. The first book, promulgated
in 1910, is entitled Des conventions relatives an travoM
and deals with apprenticeship, hire of services, wages,
exemption of wages from garnishment, and employment

^'^ Levasseur, E. Histoire des classes ouvri^res et de Tindustrie en
France. Paris, Rousseau. Part 1 — avant 1789. 2. ed. 1900-01. 2 v.
Part 2— de 1789 k 1870. 2. ed. 1903-^. 2 v. Part 3— Questions
ouvrieres et industrieUes en Prance sous la 3® R^publique. 1907.
Ixxii, 968 p.

"^Scelle, G. Precis ^lementaire de legislation industrielle. Paris,
Recueil Sirey, 1927. 366 p. (Collection; La Licence en droit.
Page 31, note 58.

^Pipkin C. W. The idea of social justice. New York, The Mac-
millan Co., 1927. 595 p.

158 GUIDE TO THE LAW OF FEANCE

bureaus. The second book, promulgated in 1912, is en-
titled De la reglementation du travail. It deals with the
employment of children, hours of labor, night work, a
weekly day of rest and holidays, health and safety regula-
tions, and inspection. The third book, promulgated in 1927,
is entitled Des growpemmits professiomiels. It deals with
trade-unions and labor cooperatives. The fourth book, en-
titled De la jv/ridiction^ De la conciUaiion et de Varhitrage^
De la representation professionnelle was promulgated in
1924 and deals with labor tribunals {GonseUs de prvd,
hommes)^ conciliation and arbitration of collective
differences between employers and employees, and the
establishment of committees of concilation and councils of
arbitration.

There are several compilations of labor and social legis-
lation. A convenient one is the Code du travail ®^ published
by Dalloz as a part of its collection of Petits codes. It
gives the first four books of the labor and social code, and
in an appendix sets forth the non-codified legislative provi-
sions and decrees relating to labor and social matters. A
similar compilation was published by Sirey under the di-
rection of Professor Eaynaud ^^ as a part of the Petits codes
Carpentier. Another compilation is that of Sumien and
Groussier,^ covering, however, only the first two books of
the Labor code.

A number of student texts deal with labor legislation as a
whole. A very good comprehensive and probably the best
work is the Traite eUmentaire ^ by Professor Pic. Profes-
sors Capitant and Cuche are the authors of a text, Cours de

^^DaUoz. Code du travail et de la prevoyance sociale avec supple-
ment. Paris, Dalloz, 1928. 2 v. in 1. 1,036 p.

^ Raynaud, B. Code du travail. Paris, Recueil Sirey, 1925. 591 p.
Supplement, 1927. 1 p. L, 111, [1] p. Supplement, 1928. 1 p. 1.,
62, [1] p.

^Sumien, P. et Groussier, A. Code du travail et de la prevoyance
sociale. Paris, Plon-Nourriet et cie. Livre I: Des conventions rela-
tive au travail, 1911. Livre II: De la reglementation du travail,
1913.

^Pic, P. Traite elementaire de legislation industrielle. Les lots
ouvrieres. 5. ed. Paris, Rousseau, 1922. 1,043 p. Supplement, 1925.
35 p.

LABOR AND SOCIAL LEGISLATION 159

legislation industrielle^ which covers combinations, unions,
strikes, the labor contract, and regulation of labor condi-
tions. It was published in 1921 and has the reputation of
being an excellent work from the point of view of clarity of
style as well as content. The same writers recently published
a Precis de legislation industrielle,^ Another important and
very good text is the Cours eleTnentaire ^ by Professor Bry,
the sixth edition of which was revised and published by Pro-
fessor Perreau in 1921. Two recent short texts, one by Pro-
fessor Eaynaud,^ of the Law faculty of the University of Aix-
Marseilles, and the other by Professor Scelle,^ of the Univer-
sity of Dijon, give excellent summaries of existing legisla-
tion. As already stated, that of the latter gives a particu-
larly good summary of the history of French labor and social
movements. Professor Scelle is also the author of an earlier
work, Le droit ov/\)rier^ published in 1922. It gives a good
account of the then existing legislation. Reference is also
sometimes made to the recent Manuel fratique^ of Bovier-
Lapierre, but this work, supposed to be a practical guide, is
not generally considered to be of outstanding value.

Positive provisions of French law recognize, in addition ^^^^^
to apprenticeships, two types of contracts between employer
and employee: the individual contract and the collective
agreement. As already indicated the existing legislative pro-
visions are contained in the second book of the Labor code.

^ Capitant, H. et Cuche, P. Cours de legislation industrielle. 2. ^d.
Paris, DaUoz, 1921. 566 p.

* Capitant, H. et Cuche, P. Precis de legislation industrielle. Paris,
Dalloz, 1927. 450 p.

''Bry, G. Cours ^l^mentaire de legislation industrielle: I. Les lois
du travail industriel et de pr^voyance sociale; legislation ouvridre.
6. 6d. rev. par E. H. Perreau. Paris, Recueil Sixey, 1921. 942 p.

* Raynaud, B. Manuel de legislation industrielle. Nouv. ed. Paris,
de Boccard, 1927. 427 p.

^ Scelle, G. Precis eiementaire de legislation industrielle. Paris, .
Recrueil Sirey, 1927. 366 p. Bee La licence en droit, Legal education.
Page 31, note 58.

* Scelle, G. Le droit ouvrier. Tableau de la legislation frangaise
actuelle. Paris, Colin, 1922. 212 p.

* Bovier-Lapierre. Manuel pratique de legislation du travail. Paris,
EyroUes, 1927. 320 p.

160 GUIDE TO THE LAW OF FRANCE

The individual contract was originally solely regulated by
articles 1780 and 1781 of the Civil code. Article 1781,
establishing a harsh rule of proof on the oath of the em-
ployer, was repealed in 1868 and article 1780 has undergone
important amendments since 1804. While either party may
terminate, at will, a contract for an undetermined period,
as it now appears in the Civil and Labor codes, article 1780,
as the result of an amendment of 1890, provides that such
termination may give rise to a cause of action.

Contracts of employment are discussed in both works on
labor legislation and treatises on civil law, in the former
under the title Contrat du travaU^ and in the latter, usually,
under the heading Louage (Pouvrage. A very good separate
study of jurisprudence and legislation was published as a
thesis in 1912 by Martini under the title La notion dhi con-
trat du tramail}^
coUective jj^ ]^j[g PrScis Profcssor Scelle compares the collective

Contract .i • n

agreement to a treaty. While it usually contains as its
principal clause one regulating wages, it also, ordinarily,
regulates the conditions under which employees are to work,
and often contains a stipulation as to arbitration of labor
disputes. Prior to 1919, French courts in giving a cause of
action for breach of a collective agreement, had recourse to
article 1134 of the Civil code, but there was always a cer-
tain degree of uncertainty as to its effect, depending on the
particular contract to which it was assimilated. The pres-
ent law, an act of 1919, grew out of projects proposed by
Doumergue in 1906 and by Viviani in 1910. The act itself
authorizes agreements between representatives of a union or
other groups of employees, on the one hand, and a group of
employers, or several employers contracting individually or
even one employer, on the other.

The collective agreement has been the subject of several
theses which merit mention. The nature of the collective
contract and its evolution are dealt with by Crepin in his
La convention collective}'^ An excellent exposition of the

"Martini, A. La notion du contrat de travail; 4tude jurispruden-
tielle, doctrinale et l^slative. Paris, Juris-classeurs, 1912. 355 p.

"Crepin, H. La convention collective du travail. Sa nature et
son Evolution historique, loi du 25 mars, 1919. Paris, Jouve, 1919.

227 p.

LABOR Am) SOCIAL LEGISLATION 161

legal nature of the contract is contained in Brethe's De la
nature juridique de la convention de tra^vail.^^ Reference
is also sometimes made to two theses, written before the
act of 1919, one by Professor Rouast,^^ now of the Paris
Law School, and another by Professor Raynaud,^* now of
the University of Aix-Marseilles. Professor Raynaud ^^ is
also the author of a later work in the nature of a guide
which discusses the economic and juristic nature of the col-
lective contract as well as its practical phases.
Mention has already been made of the fact that an act of Minimum

. . . . Wa^e

1915 made provision for a minimum wage for women home
workers in the clothing industry. This legislation is con-
tained in the j&rst chapter of the third title of the first book
of the Labor and social code (art. 33 et seq.). Its original
scope has been extended to several allied industries as the
result of subsequent decrees. A very good short commen-
tary on the act of 1915 was published in 1916 by Tourret.^*
There is also a short thesis by Bouchard,^'' which is sometimes
referred to.

The various texts on labor legislation devote a few pages Employ-
to employment bureaus. Gratuitous municipal bureaus B^^aua
were provided for and regulated by an act of 1904 and one
of 1925, both acts appearing in the Labor and social code.
There is a good commentary on the earlier legislation, La
reglementation nouvelle^^ by Fontaine.

Considerable space is devoted to a discussion of child
labor, hours of labor, days of rest, and hygiene and safety
regulations under the heading Conditions de travail. A very

"Brethe, J. De la nature juridique de la convention collective de
travail. Bordeaux, 1921. 199 p.

" Rouast, A. Essai sur la notion juridique de contrat coUectif dans
le droit des obligations. Lyon, 1909. 434 p.

"Raynaud, B. Le contrat coUectif du travail. Paris, Rousseau,
1901. 365 p.

"Raynaud, B. Le contrat coUectif en France. Paris, Rousseau,
1921. 292 p.

'^^'Tourret, J. Le salaire minimum des ouvri^res k domicile (loi
du 10 juUlet 1915). Paris, Becueil Sirey, 1916. 149 p.

"Bouchard, G. Le minimum de salaire dans I'industrie du v^te-
ment. Paris, 1927. 74 p.

"Fontaine, A., et Picquenard, C. La reglementation nouvelle des
bureaux de placement. Paris, Dupont, 1905. 1,139 p.

Labor
Disputes

162 GUIDE TO THE LAW OF FRANCE

good commentary, La protection legale des travaillewrs^^ was
published in 1910 by Professor Jay, of Paris. Necessarily,
it does not deal with legislation enacted during the war and
establishing a Saturday half holiday for certain classes of
workers nor with recent legislation providing for an 8-hour
day.

There is no outstanding work of a legal character deal-
ing with labor unions. They are dealt with, however, in
the general texts already mentioned and their evolution is
described by Paul Louis in his Histoire du 7nouvement
syndical.^^

Individual and collective conflicts between employer and
employee come within the jurisdiction of separate tribunals
under French law. Individual conflicts are within the juris-
diction of the Conseils de prud'^hommes^ reestablished by Na-
poleon and now regulated by the fundamental act of March
27, 1907, modified in several respects in 1919, 1920, and 1921,
and incorporated in the Labor and social code in 1924. This
court, composed of an equal number of workmen and em-
ployers, now has jurisdiction of controversies between em-
ployers and workmen in conmierce, industry, and transpor-
tation. Its organization and jurisdiction are dealt with in
a treatise by Bloch and Chaumel,^^ published in 1912. No
provision is made for compulsory conciliation and arbitra-
tion of collective disputes but machinery for their settle-
ment was provided for through authorization, in an act of
1892, of optional submission of conflicts to committees of
conciliation and councils of arbitration. There seems to be
a growing opinion in favor of compulsory settlement.

WORKMEN'S COMPENSATION— INDUSTRIAL
ACCIDENTS

Prior to 1898, in spite of doctrinal criticism, French courts,
basing their decisions on article 1382 of the Civil code,

*^Jay, R. La protection legale des travailleurs. 2. M. Paris,
Larose et Tenin, 1910. 436 p.

^"^ Louis, P. Histoire du mouvement syndical en France. (1789-
1910.) B. M. Paris, Alcan, 1920. 2 p. 1., x, 282 p., 2 1.

*^ Bloch, R. et Chaumel, H. Traits th^orique et pratique des
Conseils de prud'hommes. Nouv. $d. Paris, Dalloz, 1925. 562 p.

workmen's compensation — ^INDUSTRIAL ACCIDENTS 163

consistently held that an injured employee was without
redress against his employer unless he discharged the burden
of proving fault. As a result, due to the ordinarily prac-
tical impossibility of sustaining the burden of proof, even
where there was fault, the French worker was in most cases
of industrial accidents without relief. As early as 1880 it
was proposed to amend the Civil code so as to shift the
burden of proof to the employer by establishing a presump-
tion of fault, with the result that where the cause of accident
was unknown the duty of making indemnity would fall on
the employer — ^because of his inability to meet the burden of
proving lack of fault.

At the same time there was a strong doctrinal opinion in
favor of a view to the effect that the responsibility of the
employer grew out of the contract of hiring itself and not
out of a theory of delictual responsibility as established
under article 1382. According to this view the employer
was under a contractual duty to take every necessary precau-
tion to avoid injury through accidents. Supposedly, under
the general rules of proof, the contract of hiring having
been established, the burden of proof would shift to the
employer. Without success in France, the theory of con-
tractual responsibility was admitted by the Court of Cassa-
tion of Belgium, which, however, took the position that the
burden of proving that the employer had not fulfilled his
contract was on the employee, a result which gave the em-
ployee no relief. A decision of the Civil chamber of the
French Court of Cassation rendered in 1896 seemed, even
before the legislative reform, to have established liability
on the basis of responsibility as proprietor of a thing caus-
ing injury to another {cf. D. P. {i. e.^ Dalloz-periodique)
97.1.433 and S. (^. ^., Sirey— Eecueil general) 97.1.17.
Civil code, 1384). But all questions arising out of the
amendment of the Civil code or the application of its pro-
visions were definitely cut short by the legislation of April 9,
1898, placing the burden of industrial accidents on em-
ployers. Attacked at first, the revolutionary theory of
responsibility without fault has been extended both with
respect to industries and employment and scope of respon-
sibility, so that at present it includes employees in practi-
cally all but the liberal professions, government administra-

164 GUIDE TO THE LAW OF FRANCE

tion, schools, and hospitals. Existing legislation also pro-
vides for compensation for industrial diseases as well as for
injuries from accidents. Some criticism has been made of
the present law because it does not provide for compulsory
insurance by the employer and a simplified procedure in
special tribunals. In his Precis^ Professor Scelle takes the
position that if the scope of the law were extended so as
to include all employees (it has been proposed so to extend
the benefits of the present law) and provision were made
for special tribunals, the French system could be numbered
among the best.

By far the best work on workmen's compensation is
Sachet's Traite theorique et fvoubique^'^ a seventh edition of
which was published in 1926 in three volumes. There is also
a short supplement which appeared in 1927. There are two
other very good works, the last editions of which are, how-
ever, earlier than the seventh editions of Sachet's treatise.
Cabouat's treatise,^^ of which only two volumes were pub-
lished, appeared between 1901 and 1907. Cabouat is also
the author of a somewhat later work dealing with the ex-
tension of the principles of the act of 1898.2* The other is
Loubat's Traite sur le risque frofessionel?^ Attention
should be called to the fact that valuable discussions of the
liability of employers appear in the leading treatises on civil
law, usually in connection with the contract of hiring.

The act of 1898, as amended, is reported in a number of
publications. Dalloz publishes a Code des accidents du

^ Sachet, A. Traits tlieorique et pratique de la legislation sur les
accidents du travail et les maladies professionnelles. 7. ^d. Paris,
Recueil Sirey, 1926. 3 v. Supplement : Loi du 30 avril 1926. Paris,
Sirey, 1927. 31 p.

^Cabouat, J. Traite des accidents du travail. Paris, Larose et
Tenin, 1901-07. 2 v.

^ Cabouat, J. De I'extension du risque professionel aux entreprises
commerciales, aux employeui's et employes non assujettes et aux de-
legues k la security des ouvriers mineurs. Paris, Recueil Sirey,
1914-16. 2 V.

''"Loubat, G. Traite sur le risque professionnel ; ou, Commentaire
de la loi du 9 avril 1898, concernant les responsabilites des accidents
dont les ouvriers sont victimes dans leur travail. 3. ed. Paris,
Pichon & Durand-Auzias, 1906-7. 2 v.

SOCIAL INSURANCE 165

travail^^ part of the series of Petits codes^ and the act is
also reported in the Code civil and Code du travail of the
same series.

SOCIAL INSUEANCE

Until the early part of 1928 France had lagged be-
hind her neighbor, Germany, in social insurance legisla-
tion. The then existing law was the act of 1910 as modified
by the financial law of 1912. Provision was made for both
optional and compulsory insurance. The latter included
protection against old age and invalidity, but insurance
against illness and unemployment were optional. Compul-
sory insurance was at first limited to wage earners earning
5,000 francs a year, but in 1922 the amount was increased
to 10,000 francs. At the same time wage earners earning
more than 10,000 francs but less than 12,000 francs were per-
mitted to take out all types of insurance. Others, such as
small farmers and employers, were also permitted to take
advantage of the act, both with respect to its compulsory
and voluntary features. Contribution was tripartite, the
insured, the employer, and the state contributing. The par-
tial failure of this legislation was due to opposition from
both the employer and working classes and to the fact that
sufficient means for the enforcement of the compulsory fea-
tures were not provided for. There seem also to have been
unnecessary complications in the process of administration.

The present scheme was the result of a growing opinion
that social insurance is desirable and that to be a success
it must be compulsory. The influence of German legislation
on the same subject was also an important factor. This lat-
ter influence was due to the fact that in Alsace and Lorraine
the German regime was maintained after their annexation
to France. Its retention was at first intended to be provi-
sional, but, as the result of a decree of July 17, 1922, it be-
came definite. From then on it was only a question of time
until the class of benefits enjoyed by workers in these two
provinces would be extended to all French workers.

^^Dallos. Code des accidents dutravail. Paris, DaUoz, 1928. 490 p.

166 GUIDE TO THE LAW OF FRANCE

In 1919 a technical commission was appointed for the pur-
pose of formulating a plan. Their project was presented to
the Chamber of Deputies by Daniel- Vincent, Minister of
Labor in the Briand Cabinet, on March 22, 1921. It was
subsequently adopted by the lower house and sent to the Sen-
ate in 1924. After discussion in a number of special com-
mittees the plan was amended by the Senate and adopted
by it in July of 1927. The Senate bill was adopted by the
Chamber on March 14, 1928, and the law was promulgated
on April 5, it appearing in the Jow^ndl o-fftckl of that date.

The law, consisting of 74 articles, is divided into five titles.
The first title deals with compulsory insurance, the second
with administration, the third with optional insurance, and
the fourth with certain transitory matters, mainly with
respect to situations growing out of the earlier law. The
fifth title contains certain general provisions. The first
article gives the risks included within the compulsory fea-
ture of the act. These comprise illness, premature invalid-
ity, old age, death, maternity, and unemployment. Under
the heading charge de famUle provision is made for addi-
tional benefits for children of the insured, this being a part
of the effort in France to increase the birth rate. Those
coming within the compulsory features of the new law in-
clude wage earners and agricultural workers earning not
more than 18,000 francs a year. (Allowances are made for
children.) The optional features of the new law apply to
workers, such as farmers, artisans, and intellectual workers,
who are not employes or wage earners and whose earnings
do not exceed the limits fixed for wage earners.

It should be remarked that the present law differs in de-
tail from the German law which is to remain in force in
Alsace and Lorraine until such future date as may be fixed
by the French parliament.

Social insurance is usually discussed in the texts on labor
law which have already been mentioned. Those in suffi-
ciently late editions devote some space to the new plan as
proposed in 1921. A good summary may be found in Pro-
fessor Scelle's Precis. The new law has been the subject of

CRIMINAIi LAW 167

a commentary by Picard,^^ professor at the University of
Lille, and a Guide pratique ^^ has been published by Pro-
fessor Antonelli, of Lyon. There is also a Guide pratique
by H. Solus,^^ who, in addition, recently published another
work on the operation of the new law.^^*

CEIMINAL LAW

At the 1926 meeting of the Association of American Law
Schools, Dean Pound, of Harvard, called attention to the fact
that the teaching profession in the law schools of the United
States has taken comparatively little interest in the develop-
ment of criminal law (v. 12, Iowa Law Review, p. 105).
An examination of the leading modern French texts will
reveal that they represent the work of members of French
faculties who, in addition to contributing their legal knowl-
edge to the advancement of the administration of criminal
justice, also discuss some of the problems which fall within
the domain of criminology and penology and which are prac-
tically universally omitted from American works. Current
views of the larger questions involved in the administration
of criminal law necessarily have their influence on the legis-
lator and judge and it is believed that they merit some refer-
ence in connection with a discussion of the development of
criminal law in France.

The criminal law of monarchical period was marked by Evolution of
the elements which characterized that in force in all coun- S*"™"*^^

Law

tries at the time. The underlying bases were vengeance and
intimidation which naturally led to an exaggeration of sever-
ity both with respect to the number of crimes and their pun-
ishment. The philosophers of the eighteenth century, Dide-
rot, Voltaire, Montesquieu, and others, protested against the
excesses brought about by current governmental views with

^'^Picard, R. Les assurances sociales. Paris, Juris-classeurs, 1928.
153 p.

^^AntoneUi, E. Guide pratique des assurances sociales. Paris,
Payot, 1928. 229 p.

"^ Solus, H. Qu'est ce que les assurances sociales? Guide pratique
et texte annate de la loi du 5 avril, 1928. Paris, Sirey, 1928. 235 p.

"^^ Solus, H. Comment fonctionnent les assurances sociales? Guide
pratique et texte annot6 du d§cret de 30 mars 1929. Paris, Sirey,
1929. 300 p.

168 GUIDE TO THE LAW OF FRANCE

the result that important reforms were undertaken by the
revolutionary regime. In 1790 the Constituent Assembly,
applying the principles of the Declaration of the rights of
man, proclaimed equality before the law. In the following
year it promulgated the most important piece of criminal
legislation prior to the Napoleonic codes, a Penal code, the
principles of which are dealt with in a thesis by Remy, Les
2?rmciyples geTieraux du Code penal de 1791,^^ The principal
reforms of the revolutionary period were the limitation of
criminal acts to those harmful to society and reduction in the
severity of punishment. At the same time, through exces-
sive reaction against the anden regime life imprisonment
was abolished and the duration of imprisonment automati-
cally fixed in advance with the result that the judge's role
was limited to arbitrary application of the law. Under the
convention further revision of criminal law was considered ;
but the Code of 1795, the work of the noted jurisconsult
Merlin, was more in the nature of a law providing for rules
of procedure than a Penal code.

The codes of the revolutionary regime, in spite of the
progress made, were too concise and too hastily compiled to
be of long duration. Both were replaced under the Empire
by a Penal code and a Code of criminal procedure. The
Penal code of 1810, the last of the imperial codes and, as
revised, the present principal source of criminal law, was
compiled at a time when it was necessary to reestablish
order. Particularly severe, it revived a number of forms of
punishment which had been abolished during the Eevolu-
tion, such as confiscation of property, mutilation preceding
the execution of the death sentence in the case of parricides,
and life imprisonment. While provision was made for
maximum and minimum penalties, judges were required to
follow the limits fixed by the legislature. One of the results
of the excessive severity of the Code and the limitations
placed on the sentence applied by the judge was an increase
in the number of acquittals at the hands of the jury which
adopted this method of applying in its fashion a theory of
individualization of punishment. The increase in the num-

^* Remy, H. Les principes gto^raux du Code p§nal de 1791. Paris,
1910. 256 p.

CRIMINAL LAW 169

ber of acquittals raised a question of the wisdom of the exist-
ing system of administration of justice.

A new philosophical doctrine developed. Combining the
idea of expiation developed by Kant and that of social
security contained in the works of Bentham, the statesman
and historian Guizot, in his treatise Be la peine de mort en
matiere folitique^^ the philosopher Jouffroy in his Cours du
droit natwrel ^^ and Rossi, professor at Geneva and Paris, in
his Traite du droit feificd^^ as well as other writers of the
time, notably Cousin, advocated a system characterized by
limitation of punishment to the requirements of social safety
and justice. An element of moral atonement was added
by Lucas in different works on prison reform ; mention might
be made of Du systeme penal et repressif^^ and Du systeme
penitentiaire en Europe et aux ^tats-Unis.^^

Under the influence of these ideas the Penal code was
revised in 1832 and published in a second and last edition.
The severity of the earlier law was reduced and various
forms of punishment done away with. The jury was given
the power of determining the existence of extenuating cir-
cumstances, and political crimes were to some extent dif-
ferentiated from those dealt with in the Code.

The Penal code as revised might be subjected to two
classes of criticism, the first directed against its technical
arrangement or method and the second based on the under-
lying theories which brought about its revision. The second
only will be discussed at this point.

As already stated, the underlying theories of the phil-
osophical thought preceding the revision of 1832 were ex-
piation and social security, but as brought out by Professor

^^Guizot, F. De la peine de mort en matiere politique. Paris,
Bechet ain6, 1828. 185 p.

^Jouffroy, T. Cours de droit naturel profess^ k la Faculty des
lettres de Paris. 1. ed. 1833-35. 2 v. 5. ^. Paris, Hachette,
1876. 2 V.

^ Rossi, P. Traits du droit p^nal. 4. 6d. rev. par Faustin-H^lie.
Paris, Guillaumin, 1872. 2 v.

^* Lucas, C. Du systeme p4nal et du systeme repressif en g^n^ral,
de la peine de mort en particulier. Paris, Bechet, 1827. 424 p.

^^ Lucas, C. Du systeme penitentiaire en Europe et aux Jfitats-Unis.
Paris, 1828-^1. 3 v.

170 GUIDE TO THE LAW OF FRANCE

Roux in his recent Cours de droit criminel frangais^^ the
classical school of the early part of the last century, while
responsible for notable reforms, particularly with respect
to punishment, studied the application of criminal law from
the viewpoint of crime in the abstract without considering
the author of the criminal act. As a result the protection of
society against criminality was considered as a battle against
crime rather than as one against the author of crime. The
positive school of Lombroso and Ferri supplied a new
method of attack.
Modern Translated into French,^^ the biological and sociological

French . . ....

criminoi. studies of thesc outstanding Italian criminologists turned
^^ attention from crime in the abstract to the criminal. In-

troducing a method of observation of criminals as individ-
uals, they served the useful purpose of demonstrating that
the criminal can not be dealt with successfully as a uni-
form type existing in the abstract but must be considered
as a human being subject to varying influences. At the
same time the elimination of moral responsibility, in the
treatment of criminals as a whole, solely from the point of
view of protection of society, gained but little support in
France.

There has been, however, a fusion of the opinions of the
classical school of the early part of the last century and of
the Italian positivist school with a resulting formation of
what might be called a neoclassical school. While conserv-
ing the principle of moral responsibility, modern French
thought recognizes the necessity for classification and the
variation of punishment with respect to the individual pris-
oner, particularly in so far as occasional and confirmed de-
linquents are concerned. French publicists who might be
said to be identified with this new school include such emi-

**'Roux, J. Cours de droit criminel frangais. Droit p^nal, pro-
cedure p^nale. 2. ed. Paris, Recueil Sirey, 1927. 2 v.

^^^ee Criminal science series. Introduction, page 2, note 1, for
EngUsh translations.

Lombroso, C. Le crime, causes et rem^des. 2. "^d. Paris^ Alcan,
1907. 583 p.
idem. L'homme criminel. 2. 6d. Paris, Alcan, 1895. 2 v.

Ferri, E. La sociologie criminelle. Tr. par L. Terrier. Paris,
Alcan, 1905. 640 p.

CRIMINAL LAW l7l

nent names as Professors Saleilles, Garraud, Vidal, GarQon,
and Cuche, all of whom have been closely connected with
law teaching in France.

Professor Saleilles, whose name has been mentioned in
connection with his valuable studies in the field of compara-
tive civil law, was also the author of a short study of the
later schools of criminology, Les nouveUes ecoles de droit
penal ^^ and an important work on individualization of
punishment, LHndividualisation de la peine. ^^ Anew edition
of this last work was recently published by Professor Morin.
Mention should be made of the fact that a translation of
the second edition appears in the Modem criminal science
series,^^ Professor Vidal, in addition to his work on crimi-
nal law, has contributed an important study of the bases of
penology as conceived by latter-day criminologists. His
work, Introdimtion phjilosophique a Vetude du droit perwH^^
though published in 1890, may still be consulted with profit.
Two years later he published a shorter work on the anthropo-
logical Italian school under the title Etat actuel de Vanthro-
pologie crrniinelle^^ Professor Cuche is the author of an
important work on penal science, Trcdte de science et de
legislation penitentiaires^^ and a shorter study of educa-
tional punishment, Les peines educatricesJ"^

Professor Gargon, whose annotated edition of the penal
code will be referred to presently, was also the author of

^ Saleilles, R. Les nouveUes §coles de droit p^nal. Paris, Rous-
seau, 1901. 29 p.

'^ Saleilles, R. L'individualisation de la peine. iGtude de crimi-
nality sociale, publi^e avec la collaboration de G. Morin. 2. 6d. Paris,
Alcan, 1909. 3. 6d. 1927. 288 p.

^ See Introduction, p. 2, note 1. Saleilles. The individualiza-
tion of punishment. Translated from the Second French edition by
Rachel Szold Jastrow. Boston, Little, Brown and co., 1913. 322 p.

*^ Vidal, G. Introduction philosophique ^ I'Stude du droit p4naL
Principes fondamentaux de la p^nalit^ dans les syst^mes les plus
modemes. Paris, Rousseau, 1890. 637 p.

^ Vidal, G. ;Stat actuel de Tanthropologie criminelle. Paris, Rous-
seau, 1892.

** Cuche, P. Traits de science et de legislation p^nitentiaires,
Paris, Pichon et Durand-Auzias, 1905. 510 p.

** Cuche, P. Les peines ^ucatrices. Paris, Chevalier-Marescq,
1903. 99 p.

49926°— 31 12

172 GUIDE TO THE LAW OF FRANCE

a valuable little work on the evolution of criminal law and
its present status, which was published under the title Le
droit penal^ origines^ evolution, etat dctuel^^ It is gener-
ally considered to be one of the best available discussions
of the evolution of French criminal law and of the present
views of the purposes of penal laws.

In addition, a valuable study of repression and preven-
tion of crime was recently published by Professor Koux,^^
of the Strasbourg Faculty, who accentuates the importance
of prevention of crime as well as its suppression.

In this connection mention should also be made of the
social studies of Tarde, professor of philosophy at the
College of France. They include J&tudes penales et sod-
cHes^'^ consisting largely of articles previously published in
various periodicals, and La philosophie penale,^^ a transla-
tion of which appears in the Modern criminal science
series^^ The works of Joly, such as Le crime, etude sod-
ale^^ La France crirmnelle^^ Le comhat contre le crirrie ^^ and
Prohlemes de science crimdneUey^^ are also important. Men-
tion may be made of a recent work on the progress
of penal institutions,^* by A. Toulemon. The studies in
criminology {fitudes cHminologiques) published since 1926
by the Institut de crimhiologie de VUniversite de Paris,
associated with the Paris Law School, are also important.

*^ Gargon, E. Le droit p^nal ; origines-^volutioii-etat actuel. Paris,
Payot, 1922. 160 p.

**Roux, J. La defense contre le crime. Repression et prevention.
Paris, Alcan, 1921. 280 p.

^'^ Tarde, G. ]i]tudes penales et sociales. 2. 6d. Lyon, Storck, 1892.
460 p.

*^ Tarde, G. La philosophie penale. 5. ^d. Lyon, Storck, 1900.
578 p.

*';Sfeo Introduction, p. 2, note 1. Penal philosophy. By Gabriel
Tarde. Translated by Rapelje Howell. Boston, Little, Brown and
CO., 1912. 581 p.

'^ Joly, H. Le crime ; etude sociale. Paris, Cerf , 1888. 392 p,

'^Joly, H. La France criminelle. Paris, Cerf, 1889. 431 p.

'^^ Joly, H. Le combat contre le crime. Paris, Cerf, 1892. 435 p.

•^Joly, H. Probldmes de science criminelle. Paris, Hachette, 1910.
291 p.

'^Toulemon, A. Le pr ogres des institutions penales (Essai de soci-
ologie criminelle), Paris, 1928. 249 p.

CRIMINAL. LAW

m

It is usually difficult to give an exact estimate of the
influence of philosophical thought on legal matters. Pro-
fessor Garraud in his general treatise on criminal law gives
an excellent summary of the reforms during the past cen-
tury (v. 1, 168). The more important include diminu-
tion in the severity of punishment, development of the in-
stitution of extenuating circumstances through extension of
the relative provisions of the Penal code, special legislation
for juveniles and the distinction made between first and
second offenders, all of which are closely connected with
the evolution of the attitude towards crime and the criminal
during the course of the nineteenth century.

Although amended from time to time since its revision Penal code,
in 1832, the Penal code still remains the principal source of °° ^
criminal law. The Code itself consists of five preliminary
articles and four books. The first article deals with the
tripartite division of criminal acts into minor misdemeanors,
serious misdemeanors {delits) and felonies {crimes) accord-
ing to the nature of their punishment. Articles 2 and 3
deal with attempts. The fourth article provides for the
application of the ex post facta doctrine to crimes and arti-
cle 5 declares that the provisions of the Code are not applica-
ble to military offenses. The first book deals with punish-
ment of felonies and serious misdemeanors. The second
book deals with responsibility for criminal acts and contains
the rules applicable to accomplices, insane persons, and
minors. The third book treats of particular crimes. It is
divided into two titles, the first dealing with acts directed
against the security of the state, counterfeiting, forgery,
misfeasance in office, resistance to public authority, and sim-
ilar offences, and the second with those directed against in-
dividuals and property. The fourth book deals with minor
misdemeanors {contrajventions) which are punishable by
fine or simple imprisonment.

In his Cours de droit criminel frangais (p. 32, et seq,) Pro-
fessor Eoux states that though the technique of the Penal
code should be irreproachable, of all the codes promulgated
under the Empire, it is the least perfect. It is not always
logical in its arrangement and, in addition, a number of doc-
trines such as fault, mistake, and necessity are not dealt with

174 GUIDE TO THE LAW OF FRANCE

at all, and others, to mention here insanity alone, are insuffi-
ciently treated. At the same time, the technical omissions
served a useful purpose in that they permitted the courts to
adapt the general provisions of the Code to the changing
conditions of the last century.
Annotated Of tKc different large annotated editions of the Code, that
Editions j^y Professor Gargon,^^ a 2-volume work, which appeared
between 1901 and 1906 is, by virtue of its exhaustiveness, uni-
versally considered to be much the best. Due to his experi-
ence as counsel and teacher of criminal law at the University
of Paris, Professor Gargon was able to bring to his annota-
tions a combination of practical and theoretical skill which
is rarely found in a work of this kind. A third volume cov-
ering the fourth book of the Code (not included in the orig-
inal work) is announced as in press. Of the other two
annotated codes, those cited under the names Dalloz,^^
and Sirey,^^ the former has the advantage of later pub-
lication and, while less valuable than that of Gargon, is also
of importance. It consists of an original volume published in
1886 and a supplement published in 1899. Sirey is no longer
in current use. In addition to the annotated codes which
have just been mentioned, the various publishers publish
small pocket editions. Of these that of Dalloz,^^ appears
to be the best. As in the case in the other small annotated
codes forming a part of the Petite collection DalloB^ it
contains short references to jurisprudence and, in addition,
gives all the legislation pertaining to criminal matters. It
should be noted that the Penal code and Code of criminal
procedure appear in the same volume, the same being true
of the similar work published by Sirey and cited under the
name Carpentier.^®

"^Gargon, E. Code penal annote (articles 1 a 463 du Code penal)
Paris, RecueU Sirey, 1901-06. 2 v.

^ Dalloz. Les codes annotes d'aprds la doctrine et la jurisprudence :
Code p^nal. Paris, Dalloz, 1886. 1 v. Supplement, 1899. 1 v. 590 p.

'^'^ Sirey, J. et Gilbert, P. Code p^nal annote et Supplement.
Paris, Marchal, 1868.

*' Dalloz, Code d'instruction criminelle et Code p6nal. Paris,
Dalloz, 1928. 893 p.

^ Carpentier, A. et E. Code d'instruction criminelle et Code p^nal.
Paris, Recueil Sirey, 1927. 920 p.

CRIMINAL LAW 175

Turning now to the general works on criminal law we Treatises
find an array of treatises which have appeared since the
promulgation of the Code. Most of these are no longer of
great practical value having been replaced by the Traite
theorique et pratique de droit penal frangais ^^ by Professor
Garraud, of the Lyon Law School, which is easily the most
valuable general modern work on French criminal law.
The third edition is to consist of 6 or 7 volumes of which
5 have already appeared. Mention should also be made of
another important but much older work, that of Chauveau,
Professor at Toulouse, and Faustin-Helie, TMorie du Code
penal^^ consisting of 6 volumes. The sixth edition was
annotated by Villey, dean of the Law School of the Uni-
versity of Caen. In addition, a supplement, forming a
seventh volume, was published in 1908 by Mesnard, a magis-
trate. Faustin-Helie was also the author of another work,
Pratique criminelle des cours et trihunama^'^ which was re-
cently revised by Depeiges and published in a 2-volume
third edition. This work is primarily of a practical ijature
and is usually considered to be of far less value than that
of Professor Garraud. Older texts which merit mention
include Professor Boitard's popular Legons de droit crim-
inel^^^ published in a thirteenth edition in 1896; Professor
Ortolan's ^Elements de droit penal^'^ the best of the older
works for theory, and Professor Blanche's voluminous
Etudes pratiques sur le Code penal^^ the second edition of

** Garraud, R. Traite theorique et pratique de droit p^nal fran-
gais. 3. ed. Paris, Recueil Sirey, 1913-24. 5 v.

'^Chaveau, A., et Faustin-H^lle. TMorie du Code p6nal. 6. 6d.
Paris, Marchal et BiUard, 1887-^, 6 v. v. 7, Supplement, 1908.

*• Faustin-H^Ue, A. Pratique criminelle des cours et tribunaux.
R-^sum^ de la jurisprudence sur les codes d'instruction criminelle et
p6nal. 3. 4d. rev. par Depeiges. Paris, Marchal et Godde, 1920.
2 V.

^ Boitard, J. Legons de droit criminel. 13. ^d. rev. par E. Villey.
Paris, Marchal et Billard, 1896. 893 p. Appendice, 51 p,

•* Ortolan, J. [filaments de droit p6nal. P6nalit6, Juridictions, pro-
c^ure. 5. ^d. rev. par A. De^ardins. Paris, Plon; Chevalier-
Marescq, 1885. 2 v.

*" Blanche, A. ]Studes pratiques sur le Code p4nal. 2. ^d. annot^e
par G, Dutruc. Paris, Marchal et BUlard, 1888-91. 7 v.

176 GUIDE TO THE LAW OF FRANCE

which was annotated in 1888-1891 by Dutruc. The names
of other writers whose works though sometimes consulted
are now largely superannuated include Molinier ^^ and Tre-
butien.^^

In addition to the general treatises which have just been
referred to, there are a number of very good one and two
volume works intended primarily for the use of students but
which have practical value. Of these that by Professor
Roux,^^ professor of criminal law at the University of
Strasbourg, is often recommended for its clarity of style
and general arrangement. Attention might be called here
to the fact that Professor Roux is the author of a number
of extremely interesting and valuable notes on criminal law
which have appeared from time to time in the Recmeil Sirey.
The classical student's manual is Professor Garraud's
Precis de droit criminel^^ recently published in a fourteenth
edition. Another scholarly work is that of Vidal and
Magnol, CouTs de droit criminel et de science penitenti-
aireJ^ Originally the work of Professor Vidal of Toulouse,
it was recently published in a seventh edition by Professor
Magnol of the same faculty, this last edition being the third
in the publication of which Professor Magnol cooperated.
Of the shorter works on criminal law it probably gives the
best exposition of the schools of thought which have from
time to time influenced the development of French criminal
law. Mention should be made of the fact that it also con-
tains a valuable discussion of the various forms of punish-
ment under French laws (book 7, p. 580 et seq,). Like
the other shorter works on criminal law it deals with crim-
inal procedure. While less important, Professor Degois'

'^Molinier, V. Traite tMorique et pratique de droit penal, annot^,
et mis au courant par G. Vidal. Paris, Rousseau, 1893-94. 2 v.

"^ Trebutien, E. Cours elementaire de droit criminel. 2. ed. rev.
par Laisn^Desliayes et L. Guillouard. Paris, Lahure, 1878-83. 2 v.

"^Roux, J. Cours de droit criminel frangais. Droit p^nal, pro-
cedure penale. 2. M, Paris, Recueil Sirey, 1927. 2 v.

^'Garraud, R., et Garraud, P. Pr^is de droit criminel. 14. ^d.
Paris, RecueU Sirey, 3926. 1,118 p.

^®Vidal,G. Cours de droit criminel et de science penitentiaire. 7.
ed. refondue par J. Magnol. Paris, Rousseau, 1928. 1,125 p.

CRIMINAL LAW 177

Traite elementaire de droit criminel'^^ is also a valuable
work.

Before turning to some of the more important subjects
falling within the scope of the Penal code and subsequent
legislation, reference should be made here to a valuable
French periodical devoted to criminal law and procedure as
well as to general problems of criminology, now published
under the title La revue penitentiaire et de droit penal.

The literature dealing with particular topics comprised
within the field of French criminal law is limited. There
are, however, several subjects which are believed to be of
sufficient general interest to be referred to in spite of the
absence of special studies other than those contained in the
general works which have already been mentioned.

The question of criminal attempt, which may always be Attempts
counted on to give rise to discussion under any legal system,
was the subject of an interesting article by Professor
Saleilles, Essai sv/r la tentative^ which appeared in the Revue
penitentiaire in 1897 (p. 53) and of a thesis by Henri Gallet,
La notion de la tentative pu/rdssableJ^

The philosophical question as to the point at which the
law should intervene in the various steps leading up to the
commission of a crime as well as the punishment to be meted
out when it does intervene is of itself a difficult one. The
usual point of view is objective. Under this view the law
should only intervene when the preparatory acts have suffi-
ciently advanced to permit the commission of the desired
result. In addition, the punishment meted out should be in
proportion to the gravity of the effect and not dependent
upon the state of mind of the accused. From the point of
view of the Italian positivist school of thought, since the
measure of punishment is not the gravity of the crime but
the criminal tendencies of the accused, preparatory acts
should be dealt with according to the criminal nature of the
author. Article 2 of the French code, while requiring that
the attempt consist of an overt act which has been inter-

"Degois, C. Traits Elementaire de droit criminel. 2. 6d. Paris,
Dalloz, 1922. 850 p.

"GaUet, H. La notion de la tentative punissable (essai critique).
Paris, Rousseau, 1899. 363 p.

178 GUIDE TO THE LAW OF FEANCE

rupted by circumstances independent of the volition of the
accused, adopts a subjective method of punishment in that
the attempt is punished as though the intended crime had
been committed. In this respect it is unique, but it should
be stated tht the liberty allowed the jury in applying the
doctrine of extenuating circumstances generally results in
the application of a lighter form of punishment.
fng circum- ^hc Iiistory of French law with respect to the effect of
stances the existence of extenuating circumstances, not to be con-
fused with legal excuse, is of itself an interesting one.
Under the prerevolutionary regime the judge was allowed
a wide discretion to alleviate the excessive harshness of the
existing criminal law. As already noted, the legislation of
1791 through an exaggerated reaction against the abuse of
arbitrary punishment took this discretion from the judge.
But limited steps were taken for the reestablishment of the
system in the Penal code of 1810 and legislation of 1824.
With the revision of the Code in 1832 the matter was placed
in the hands of the jury through modification of article
463, which, in its present form, makes provision for the modi-
fication of the punishment of the defendant on declaration
by the jury of the existence of extenuating circumstances.
Early views of the sy^em may be obtained from CoUard's
Du systeme des circonstances attermantes '^^ and Bertin's De
la repression penale et des circonstances attenuantes,'^^ Very
good modern discussions appear in Professor Garraud's gen-
eral treatise (v. 2, sees. 151 to 154) and Precis (p. 420
et seq.). Professors Vidal and Magnol and Professor Roux
also give short resumes in their works on criminal law.
Professors Vidal and Magnol (p. 363) mention a proposal,
made some years ago, to broaden the existing system beyond
its present limits by creating "very extenuating circum-
stances " so as to permit the jury to provide even more
lenient punishment in certain cases, notable passional homi-
cides and infanticides, in which French juries too often

"CoUard, C. Du systdme des circonstances att^nuantes depuis son
origine, sp^cialement sous le Code* de 1832. Paris, Hingray, 1840.
116 p.

^*Bertin, J. De la repression p6nale et des cironstances att6nu-
antes. Paris, Durand, 1859. 48 p.

CRIMINAL LAW 179

bring in a verdict of not guilty. But Professors Vidal and
Magnol also call attention to the fact that there has been
some reaction against the system, particularly in the years
immediately preceding the war.

A fairly good discussion in English, by Herbert Bayle,
appears in volume 18 of the Juridical Review (pp. 259, 341).

While French law makes provision for the diminution Hawtuai
of the sentence on the existence of extenuating circum- ^^™"^^^
stances, it is also particularly severe with respect to crimi-
nals who have already been convicted of an offense. The
rules of law are contained in articles 56, 57, 58, 474, 478, and
482 of the Penal code as amended in 1891. An act of
May 26, 1885, deals with deportation of habitual criminals
to penal colonies. Its general purpose was to purge French
soil of professional criminals who are presumed to be in-
corrigible because of the frequency of their conviction.
The best exposition of the various circumstances under
which punishment may be increased upon the commission
of a subsequent offense, or where deportation to a penal
colony may take place because of the frequency of con-
viction, is to be found in Garraud's treatise. Professors
Vidal and Magnol also give a valuable discussion in their
CouTS de droit criminel (p. 396 et seq,).

In this connection reference should be made to the sys-
tem of recordation and proof of prior conviction, desig-
nated under the term Cosier jvdicicdre. This system is easier Ju-
extremely simple and consists of a record kept by a clerk ^*^^*^'®
of each correctional court. In the case of conviction of a
person born in another jurisdiction a copy of the record is
sent to the clerk of that court and filed there. If the ac-
cused is a foreigner or the place of his birth is unknown the
record is sent to the Ministry of Justice. Under these cir-
cumstances it is always possible to obtain the record of an
accused, once convicted, by referring to the place of his
birth or to the Ministry of Justice. The cosier judiciaire has
been the subject of a number of comparatively recent
studies. That of Le Poittevin, Le cosier judicioire^'^^ a

"Le Poittevin, G. Le easier judiciaire; 6tude critique sur le
easier judiciaire en France et dans les pays strangers. Paris, Rous-
seau, 1907. 391 p.

180 GUIDE TO THE LAW OF FRANCE

critical study of the French and other systems, is generally
considered to be the best.
Juvenile Juvcnile delinquency, which has occupied the thought of
e inquenc3? [^j^gj-j^^^ns within Tcccnt ycars, has also been the preoccupa-
tion of French criminologists. The existing French legisla-
tion should be of particular interest because of the influence
upon it of similar legislation in the United States. The law
now in force is that provided for in an act of 1912 as amended
by subsequent legislation. The present age of criminal ma-
jority is 18 instead of 16, as had been the case under the
Penal code. Children of 13 or less who commit serious
offenses are not criminally responsible, but appear before a
division of a civil court which is authorized to take special
measures for their protection and care. Minors between
the ages of 13 and 18, while triable before a criminal court,
enjoy the benefits of certain procedural provisions which are
not applicable to mature criminals. The trial court must
pass on their power of discernment. If found guilty their
punishment differs from that of ordinary criminals.

The legal rules concerning juveniles, in force at the time,
are dealt with in the Code manuel des tHhv/navjsG pour en^
fants^^ published in 1913 by Jf ast and Kleine. They are also
ably discussed in the Gouts de droit crtTrdnel* of Professors
Vidal and Magnol (p. 194 et seq,) and in the Precis of Pro-
fessor Garraud (p. 196 et seq,). Both works give ample
references to the general literature relating to the subject.
The Gomite de defense des enfants traduits en justice pub-
lished a " code " '^'^ of laws pertaining to juveniles in 1904. A
supplement was published in 1922 by the Societe generale
des prisons,

CKIMINAL PEOCEDUKE

The rules of French law relating to criminal procedure
are contained in the Gode dHnstruction publique as modified

'"Nast, M., et Kleine, M. Code manual des tribunaux pour en-
fants. (Commentaire de la loi du 22 juUlet 1912). Paris, Picbon et
Durand-Auzias, 1913. 328 p.

"Code de I'enfance traduite en justice, pubU§ par le Comity de
defense des enfants traduits en justice de Paris. Paris, Rousseau,
1904. vii, 467, 477 p. Supplement. Soci§t§ g^n^rale des prisons,
1922. 64 p.

CRIMINAL PROCEDURE 181

by subsequent legislation. As already stated in connection
with the discussion of legal history, the evolution of crim-
inal procedure in France received valuable treatment in
Professor Esmein's Histoire de la procedure criminelle en
F ranee P The general works on the subject also contain
some reference to its history.

Unlike substantive criminal law, criminal procedure was
the object of codification prior to the Ee volution, having
been the subject of the famous ordinance of 1670. The prin-
cipal characteristics of prerevolutionary procedure were
the secrecy of the preparation of the accusation, its in-
quisitorial method, and the denial of counsel to the accused.
Condemned by the philosophers of the eighteenth century,
this system was not able to survive the establishment of a
new theory of public law under the Kevolution. The revo-
lutionary government, influenced largely by the system of
administration of criminal justice in England, made a num-
ber of radical changes, which included the establishment
of a jury of presentment, a trial jury, and public hearings.
The Code of criminal procedure, which was voted in 1808 but
did not become effective until 1811, represents a compromise
between the legislation of 1670 and the changes made during
the Eevolution. The laws of the latter period furnished
the rules as to publicity of trial, the jury in the Court of
Assize, and the simplified procedure before other courts hav-
ing criminal jurisdiction. The older legislation supplied
the preliminary preparation of the accusation and the sepa-
ration of prosecution and accusation. The jury of present-
ment was replaced in the Code by a special tribunal created
to bring in indictments. Subsequent legislation has to some
extent modified the provisions of the Code, but it still re-
mains the principal source of French procedural law in
criminal matters.

The Code consists of a number of preliminary articles and code of
two books which are in turn divided into titles. The pre- ^'^^'^

-, , • • n 1 • 1 Procedure

limmary provisions deal with such important matters ascontenta

"Esmein, A. Histoire de la procedure criminelle en France et
sp^ialement de la procedure inquisitoire, depuis le xiii ® sidcle
jusqu'a nos jours. Paris, La rose et Forcel, 1882. 596 p.

182 GUIDE TO THE liAW OF FRANCE

civil process in connection with the public prosecution and
jurisdiction. The first book is entitled De la police judi-
eiaire. It treats of the officers to whom is confined the duty
of ascertaining the commission of offenses {agents de recher-
che)^ those who prosecute and their functions (procureurs) ,
and committing magistrates {juges dHnstruction) , The
second book is entitled De la justice. The first title deals
with police courts and tribunals having jurisdiction of
serious misdemeanors. The second title, which is headed
Des affaires qui doivent etre sowmises au* jury^ deals with the
process of indictment by a section of a Court of Appeals
and the formation of Courts of Assize. It also treats of the
procedure before the latter court, the examination of the
accused and witnesses, the judgment and its execution, and
the manner in which the jury is selected. The third title
d-eals with annulments of criminal process, recourse to the
Court of Cassation, and revision. Attention should be
called in this connection to the important provision of article
446, which as amended in 1895 provides for the allowance of
damages to victims of judicial errors. The fourth title deals
with procedure in certain particular matters. The fifth
treats of conflicting claims to jurisdiction and their regula-
tion and the transfer of cases from one court to another.
The seventh contains diverse provisions relating to such mat-
ters as records of judgments, detention of persons accused of
a crime, rehabilitation, and prescription.

Of the different annotated editions of the Code that of Le
Poittevin ^^ is generally conceded to be much the best. A
2-volume work which was published between 1911 and 1926,
it is comparable with Gargon's annotations of the Penal
code. Of the other annotated codes, those cited under the
names of Dalloz ^^ and Sirey et Malepeyre,^^ the former
though slightly older is generally considered to be the better.

"Le Poittevin, G. Code d'instmction criminelle annote. Paris,
Recueil Sirey, 1911-26. 2 v. Vol. 1 and part of v. 2 have been
published. The annotations cover articles 1 to 360.

** Dalloz. Les codes annotes d'apr^s la doctrine et la jurisprudence :
Code d'instruction criminelle. Paris, Dalloz, 1901. vi, 1329 p.

" Sirey, J., et Malepeyre. Les codes annotes de Sirey et Gilbert.
Code d'instruction criminelle. 4. 4d. Paris, Marchal et Billard, 1^3.
853 p.

CRIMINAL PROCEDURE 183

For practical use in connection with the first 360 articles
both have, however, -been replaced by Le Poittevin's work.
Mention has already been made of the fact that the Code of
criminal procedure is combined with the Penal code in Dal-
loz's and Carpentier's pocket editions.

The outstanding treatise on criminal procedure is Gar-
raud's Traite theorique et pratique (Tinstruction criminelle
et de procedure penale^^^ representing the work of Professor
Garraud and his son. Faustin-Helie's Traite de Tinstruction
criminelle^^ an 8-volume treatise, published between 1866
and 1867, was long the classic work. In this connection it
may be well to again call attention to the fact that criminal
procedure is also dealt with in elementary works on criminal
law.

As is the case with respect to substantive law, there is very
little literature of value dealing with the particular subdivi-
sions of the Code. They are fully dealt with in Garraud's
treatise. For short, clear discussions of such matters as the
organization of the criminal courts, the jury, and the duties
of the committing magistrate, the second volume of Professor
Koux' Cours de droit criminel is recommended. In addition,
Professor Roux gives excellent summaries of such matters as
appeals, procedure before the Court of Cassation, and re-
vision. Professor Garraud's Precis is also valuable in this
connection.

An American or English observer of a felony trial in*^^^
the Court of Assize is apt to be struck by the absence of
examination and cross-examination by counsel, the absence
of rules of evidence as understood in England and America,
the predominating position of the president of the court,
and the seeming lack of safeguards to the accused which we
deem essential to a fair and impartial trial. These strik-
ing differences have led to an abundant literature, consisting
of notes and articles, in Anglo-American periodicals, which.

*' Garraud, R., et Garraud, P. Traite theorique et pratique d'instnic-
tion crimineUe et de procedure p^nale. Paris, Larose & Tenin, 1907-
29. 6 V.

"^ Faustin-H^lie, A. Traits de Tinstruction crimineUe, ou th^orie
du Code d'instruction crimineUe. 2. 6d. Paris, Plon, 1866-6T. 8 v.

184 GUIDE TO THE LAW OF FEANCE

in the main, has been uncomplimentary to the French sys-
tem.®* It should be borne in mind, however, that the com-
mon law prevails only in English-speaking communities and
that the French system, or something similar to it, is in
effect on the Continent, where the administration of criminal
justice is, generally, more efficient than in the United States.
In the Court of Assize, instead of having one judge presiding,
there are three. The case against the accused is presented
by the president of the tribunal following the reading of the
indictment. His presentation is usually followed by exami-
nation of the defendant, after which the witnesses are called.
While attorneys may at the discretion of the court ask ques-
tions through the president, they have no right to examine the
witnesses nor the defendant, who give their testimony in nar-
rative form without regard to such limitations as hearsay
and opinion. The role of the attorney for the defendant
seems to be limited to a discussion of the testimony of a
witness immediately after it has been given and to his
summing up and rebuttal. As already pointed out, the jury,
in addition to passing on the facts of the case, may deter-
mine the existence or nonexistence of extenuating circum-
stances. It should be recalled that the jury was an inno-
vation introduced from England during the Revolution.
Like the English jury it consists of 12 members, whose
qualifications are now governed by an act of 1872, but unlike
the system prevailing in England a majority is sufficient
for a verdict. If the jury are divided equally, the defend-
ant is acquitted. That the accused, when he gets before the
Court of Assize, is in a defensive position may appear shock-
ing to those accustomed to the presumption of innocence
as it prevails in England and the United States. That this

^A large part of the periodical literature, in English, is not of
sufficient merit to be worthy of citation. Citations to articles and
notes may be found in the Index to Legal Periodicals under the head-
ings France and Criminal law. The most comprehensive article ap-
pears to be Professor Garner's Criminal procedure in France, 25 Yale
Law Journal 255. Other articles include short comments by Thomas
Barclay and Frederic Coudert, respectively, in 10 Harvard Law Re-
view 46 and 19 Yale Law Journal 326; Ferrari's Procedure in the
Cour d' Assize, 18 Columbia Law Review 43 ; and an interesting ** eye-
witness " account by " Docket " in 47 American Law Review 300.

CRIMINAL PROCEDURE 185

is true in practice in France is due to the fact that the case
has undergone thorough investigation by an investigating
judge and that the defendant has been indicted by the " Cham-
ber of indictment." The investigating judge, or committing
magistrate {juge dHnstruction) ^ gathers all the facts of the
case and of the defendant's past life which can have any
bearing on the commission of the crime. A report, as a part
of the record, is sent to the trial court after indictment.
The indictment, instead of being found by a grand jury of
laymen, is the result of an investigation by a special tribunal
consisting of three judges {Chamire (F accusation) and form-
ing a section of the Court of Appeals. It is not surprising,
therefore, that the Court of Assize recognizes that the accused
should explain why he is before it.

The jurisdiction of the Court of Assize is limited to fel-
onies {crimes). Minor and serious misdemeanors are tried,
respectively, before a police court, consisting of a justice
of the peace, and what is called a " correctional " court,
consisting of judges who are also members of a court of
original civil jurisdiction.

As might be expected, the different international ques- Jurisdic-
tions arising out of the application of penal law are of *^^^^^ J^*^^*
greater interest to Continentals than to Anglo-Americans. Penai Law
They have received treatment by a number of continental
writers, among whom should be mentioned Dr. Travers,
who deals with the French doctrines of criminal jurisdic-
tion, as well as with other international penal questions, in
his outstanding Traite de droit penal international.^^ Juris-
diction is dealt with in the Introduction a Vetude du droit
penal international^^ by Professor Donnedieu de Vabres,
who is also the author of an important recent work ^^ dealing

^Travers, M. Traits de droit p^nal international et sa mise en
oeuvre en temps de paix et en temps de guerre. Paris, Recueil Sirey,
1920-21. 5 V.

*" Donnedieu de Vabres, H. Introduction k T^tude du droit penal
international ; essai d'histoire et de critique sur la competence crimi-
nelle dans les rapports avec I'^tranger. Paris, Recueil Sirey, 1921.
482 p.

*^ Donnedieu de Vabres, H. Les principes modernes de droit p^nal
international. Paris, Sirey, 1928. 470 p.

186 GUIDE TO THE LAW OF FRANCE

with modern principles of international penal law. The first
work is devoted primarily to French law.

The French rules of jurisdiction, combining as they do
a territorial and personal theory, are of sufficient interest
to merit some attention. Under the provisions of articles
5 and 6 of the Code^ a French citizen who commits a felony
{crime) abroad is subject to French law. If the act consists
of a serious misdemeanor {delit) the author is punishable
in France, but only if it is also prohibited by the law of
the place where committed. In either case the author is
not punishable under French law if he has been tried abroad
and, in case of conviction, has served the sentence or been
pardoned.

Strangely enough, the application of French criminal law
to acts committed in France by foreigners is governed pri-
marily by the provisions of the Civil code, the third article
of which provides that the laws of police and public safety
are applicable to those who inhabit the territory. In 1903
territorial sovereignty was in part relinquished in an act of
April 3 which provided that a foreigner who has committed
a crime or serious misdemeanor in France is not triable
there if tried abroad and, in case of conviction, has served
his sentence or been pardoned. It should also be noted that
article 7 of the Code of criminal procedure, as amended in
1866, adopts a rule which is not unusual in providing for
punishment in France of acts committed abroad by for-
eigners, when such acts consist of counterfeiting the seal
of the Government, governmental papers or money, or are
directed against the safety of the state. The mere fact that
the victim of a crime committed abroad is French does not
confer jurisdiction.

Among the individual traits of French law pertaining to
procedure, mention should be made of the possibility of
the intervention of the party injured in the public prosecu-
tion as the partie civile and the provisions made for com-
pensation to a person who has been the victim of an erro-
neous conviction, presently to be discussed.

Article 3 of the Code of criminal procedure states that a
civil action may be brought at the same time and before the
same court as the public prosecution, thus making provision

CRIMINAL. PROCEDURE 187

for the union in one proceeding of the action of the state
and that of the individual injured. In addition to the dis-
cussions contained in the general works on criminal law and
procedure, the matter is also specially dealt with in an old
but still important work by Mangin, Traite de V action jmb-
ligue et de Vaction civile en inatiere cmriineTle^^ which, as its
title indicates, deals in general with public criminal prose-
cution and civil actions in criminal matters. An interesting
discussion, in English, by Doctor Lapie, of the Paris bar,
may be found in volume 10 of the Journal of Comparative
Legislation (p. 33, 3d series).

The important French rules as to compensation to a vic-
tim of an error in the administration of criminal justice are
provided for in article 446 of the Code of criminal procedure
in connection with the general subject of revision of judg-
ments. This provision received valuable treatment by Pro-
fessor Borchard in an article entitled European systems of
2tate indemnity for errors of criminal justice^ which ap-
peared in the Journal of the American Institute of Criminal
Law for 1912-13 (p. 684). Appeal and revision were also
discussed by Doctor Weber, of the French bar, in an article
appearing in the Juridical Eeview of 1899 (v. 11, p. 26).

MILITARY JAW

As already stated, special separate provision for the prose-
cution and punishment of crimes committed by members of
the public land and naval forces was made by the promulga-
tion of two codes in 1857 and 1858, Code de justice militaire
pour VArmee de terre and Code de justice pour VArmee de
mer. The military codes make provision for three categories
of crimes — ^military crimes in a strict sense, comprising crimes
which consist, particularly, of failure by soldiers and sailors
to fulfil some professional duty, such as revolt, insubordina-
tion, or desertion; criminal acts committed by soldiers and
sailors which, while ordinarily criminal, are more severely
punished under the terms of the military codes, including

^Mangin, C. Traite de Taction pubUque et de Faction civile en
matidre eriminelle. 3. ^d. revised by A. Sorel. Paris, Larose, 1876.
2v.

49926°— 31 13

188 GUIDE TO THE LAW OF FRANCE

such acts as theft of military stores and falsification; and
crimes by members of the land and naval forces which are
subject to the same punishment as those committed by
civilians.

Military crimes are triable before special courts, compris-
ing courts-martial and maritime tribunals. In addition to
a difference in jurisdiction, they are also subject to certain
differences with respect to the application of the laws dealing
with second offenses, deportation, and extradition, all of
which are summarized by Professors Vidal and Magnol in
their Oours de droit criminel et de science perdtentiaire (p.
Ill et seq,).

The most important general work on military criminal
law is the TraitS theorique et pratique de droit penal et
procedure criminelle militaires^^ by Augier and Le Poit-
tevin. The first volume, dealing with substantive law, ap-
peared in 1918. A much older and less valuable work,
Gommentaire theorique et pratique des Codes de justice
"maritime et militaire^^ was published by Wilhelni in 1897.
The latter consists of a reprint from the Repertoire general
du droit frangais. Some idea of French courts-martial may
be obtained from an article by Ferrari, of the New York
bar, published in the Journal of the American Institute
of Criminal Law in 1919 (v. 9, p. 5).

EXTEADITION

While extradition is not always dealt with in connection
with criminal law and procedure, it is convenient to dis-
cuss the French law relating to the subject at this point.

Prior to 1927 extradition in France was regulated solely
by treaty or declarations of reciprocity. It was also ac-
corded by decree, the provisions of treaties not being con-
sidered exhaustive. The subject is now regulated by an
important act of March 10, 1927.

^^ Augier, J., et Le Poittevin, G. Traits theorique et pratique de
droit p^nal et de procedure erimineUe mUitaires. t. 1, Droit penal
miUtaire. Paris, Recueil Sirey, 1918.

•^Wilhelm, A. Commentaire theorique et pratique des Codes de
justice maritime et miUtaire. Paris, Larose, 1897. 155 p.

PRIVATE INTERNATIONAL LAW 189

This act is not applicable to matters regulated by treaties,
but as the latter generally make no provision for the pro-
cedure to be followed in extradition proceedings the inno-
vations of the present law have an important effect. Un-
der its provisions, extradition can not take place in the
absence of a favorable finding on the part of an accusatory
court, thus introducing judicial process as one of the im-
portant elements in such proceedings. It should be re-
marked, however, that even though the finding of the court
be favorable to extradition, the Government may refuse to
honor the requisition of a foreign government.

With respect to the conditions under which extradition
may be granted, the provisions of the new law follow gener-
ally the principles of international law as understood in
France. Among the more important provisions of the act
are those declaring that extradition can not take place if the
accused is a French subject (at the time of the offense) or if
the crime was committed in France or one of her possessions.
In addition, the requisition will not be honored in the case
of political or military crimes.

Extradition received treatment in Travers' Le droit penal
international (v. 4-5), which has already been referred to in
connection with the discussion of jurisdiction. Reference is
also sometimes made to Beauchet's earlier Traite de V extradi-
tion ^^ and different works on international law, but none of
these works deal with the present law. A very good sum-
mary of the present act may be found in the manual of
Professors Vidal and Magnol. In addition, it received com-
mentary in a recent publication by Dr. Travers.^^

PEIVATE INTEENATIONAL LAW

In French legal terminology the subject, private inter-
national law, has a wider scope than its American counter-
part, conflict of laws. In addition to conflict of laws,
properly speaking, it includes the rules of law concerning
nationality and privileges of foreigners in France.

*^Beauchet, L. Traite de r extradition. (Extr. des Pandectes fran-
Caises.) Paris, Chevalier-Marescq, 1899. 752 p.

*^ Travers, M. L'entr'aide repressive intemationale et la loi fran-
Caise du 10 mars 1927. Paris, Sirey, 1928. 772 p.

190 GUIDE TO THE LAW OF FRANCE

With the exception of those relating to nationality, which
are the subject of minute regulation in practically all coun-
tries, positive rules are particularly few and are to be found
in different parts of the Civil code, the Code of procedure,
and the Commercial code. The sparsity and diversity of
positive rules have led to greater development of this im-
portant subject through jurisprudence and doctrine than
probably of any other field of French private law.

Indeed, the development of the subject in France has
evoked the admiration of as eminent an American authority
as Professor Lorenzen, who in an article on French rules
of Gon-flicts of loAm (36 Yale Law Journal 731) says that
'' some of the greatest names connected with its science are
French."

The standard current treatises are those of Professor Weiss
and of the late Professor Pillet, both of Paris. The two
treatises reflect to a certain extent the personal views of their
authors and for that reason are to be used with some degree
of care in so far as exposition of modern French law is con-
cerned. The Traits theoHque et pratique ^^ of Professor
Weiss was originally intended to consist of seven volumes,
of which six were published between 1907 and 1913, An
older work than that of Professor Pillet, it is perhaps better
known and for that reason enjoys a greater degree of popu-
larity. The Traits pratique ^* by Professor Pillet consists
of two volumes published in 1923-24. The subject matter
covered includes, in addition to the usual topics, such as
nationality, domicil, jurisdiction, capacity, property, pro-
cedure, and execution of foreign judgments, a valuable dis-
cussion of international commercial law. The treatise itself
was written largely from the point of view of a practical
work intended to develop the principles contained in an older
theoretical work by the same writer, PHiioipes de dn^oit
international pmvS^^ which, in addition to being a capital

®^ Weiss, A. Traite th^orique et pratique de droit international

prive. 2. ed. Paris, RecueU Sirey, 1907-13, 6 v.

*^ Pillet, A. Traite pratique de droit international priv^. Paris,

Recueil Sirey, 1923-24. 2 v.

^^ Pillet, A. Principes de droit international prive. Paris, Pedone,
1903. 586 p.

PRIVATE INTERNATIONAL LAW 191

production, exercised considerable influence on French
thought in the field of private international law. Reference
should also be made here to a recent two-volume collection of
essays and notes by Professor Pillet, published by Sirey
under the title, Melanges Antoine Pillet,

Eeference is also sometimes made to a much older work,
that of Laurent, a Belgian, Droit civil international^^^
which is no longer of practical value. Another old work, at
one time important, but now not often consulted, is the
Traite du droit international yAve^'^ which was originally
published by Foelix and later revised by Demangeat.

The number of one-volume works is exceedingly large. The
more popular are those of Professors Weiss and Pillet and
Niboyet. The Manuel de droit international prive^^ by Pro-
fessor Weiss, has gone through nine editions, and its popu-
larity is in part due to its remarkable clarity of style. It is
not always considered to be the equal in intrinsic merit of
the recent Manuel de droit international yrive^^ by Pro-
fessors Pillet and Niboyet. The older Precis de droit inter-
national frive^ by Professor Despagnet, a fifth edition of
which was published in 1909 under the direction of Pro-
fessor de Boeck, and the Cours elementaire de droit inter-
national prive^ of Professors Surville and Arthuys, a sev-
enth edition of which appeared in 1925, are also important
works. The latter in particular is informative and com-
prehensive. It should be remarked, however, that neither
work fully expresses modern thought in the solution of prob-

*' Laurent, F. Droit civU international. BruxeUes, Bruylant;
1880-81. 8v.

^Foelix, J. Traits du droit international priv^, ou, Du eonflit
des lois de diff^rentes nations en matiere de droit priv6. 4. M. rev.
par Demangeat. Paris, Marescq, 1866. 2 v.

*^ Weiss, A. Manuel de droit international priv^. 9. 6d. Paris,
Recueil Sirey, 1925. 737 p.

"^ Pillet, A., et Niboyet, J. Manuel de droit international priv6.
Paris, Recueil Sirey, 1924. 792 p. 2. ed. Niboyet, J. P. Manuel de
droit international prive. 1928. 1.045 p.

^ Despagnet, F. Precis de droit international prive. 5. ^d. rev. par
Ch. de Boeck. Paris, Larose & Tenin, 1909. 1,250 p.

^ Surville, F., et Arthuys, F. Cours -^l^mentaire de droit interna-
tional priv§. Droit civil. Procedure. Droit commercial. 7. ^d.
Paris, Rosseau, 1925. 948 p.

192 GUIDE TO THE LAW OF FRANCE

lems of private international law. The Manuel^^ by Pro-
fessor Valery is very good and represents in a realistic
manner French jurisprudence, but for some reason it failed
to obtain the same degree of popularity as the works which
have already been mentioned. The recent Precis de droit
international prive^^ by Professor and Judge Arminjon, is
generally considered to be very good, but somewhat difficult
to read. The older short work of Audinet, Prinoipes eleTnen-
taires^^ while of value, is not considered to be as important
as those of more recent date.

There are two important periodicals devoted to private
international law, which in addition to leading articles con-
tain the important court decisions. The oldest is the Journal
du droit international pHve^ now called Joumul du droit
international. It was founded in 1874: by Clunet and is
usually cited under the name of its founder. Its analytical
indices are important. The well-known Revue de droit in-
ternational prive^ formerly the Revue de droit international
prive et de droit penal international,.^ was founded by Darras
in 1905 and since 1909 has been under the direction of Pro-
fessor de Lapradelle, of the University of Paris. The latter
review is often cited under the name Darras, but at present
more usually under the name de Lapradelle.

Attention should also be called to an encyclopedia of pri-
vate international law ^ which was begun by Professor de
Lapradelle in 1914. Eight volumes have appeared to date ;
a ninth is announced as in press.

In addition reference should be made to a series of lec-
tures on international unification of the rules of private
international law, delivered by Professor Demogue in
Buenos Aires in 1927.^

^Valery, J. Manuel de droit international prive. Paris, Fonte-
moing, 1914. 1,391 p.

*Arminjon, P. Precis droit international prive. 2. ed. Paris,
Dalloz, 1927-29. 2 v.

*Audinet, E. Principes ei^mentaires de droit international prive.
2. 6d. Paris, Pedone, 1906. 692 p.

* Repertoire de droit international prive et de droit penal inter-
national, pub. par. A. de Lapradelle. Paris, Recueil Sirey, 1914-30.
8 V. Present collaborator, J. P. Niboyet.

'^Demogue, R. L'unification Internationale du droit international
prive, Paris, Rosseau, 1927. 205 p.

PRIVATE INTERNATIONAL LAW 193

The article of Professor Lorenzen (36 Yale Law Journal
731), just referred to, is intended to be a part of a series
of articles dealing with the treatment of conflict of laws
problems in France; when completed, it should be an ex-
tremely valuable exposition of French law.

Under the impression that the enjoyment of civil rights Nationality
by nationals is the most important incident of nationality,
the authors of the Civil code placed the rules relating to
French nationality in the Code (arts. 8 et seq.). The
original provisions have been amended or changed from
time to time, notably in 1889, and were recently the sub-
ject of important legislation which brought about profound
changes in the prior attitude of the legislature. This legis-
lation (act of August 10, 1927) is believed to be of sufficient
importance to warrant some comment.

Reform of the laws of nationality had been considered
for a number of years. A project was proposed as early
as 1913, but it was during the war that the first active steps
were taken. Inspired by the spirit of hostility to foreigners
engendered by the war, two projects were proposed in 1916
and 1917, the second being the result of the labors of the
Sodete d'etudes Us/isl<vtifs {Bulletin 1917-18, pp. 23-82,
283-291.) These were adopted by the Senate in 1922
and ratified by the Chamber, but with sufficient modifica-
tions to require that the bill be sent back to the Senate. In
the interval a number of other bills were voted on but with-
out definite results.

In 1924 a new bill was adopted by the Senate. Accepted
by the Chamber in 1927, it thus became a part of French
law. The present law, instead of being less liberal than
that previously in force, is marked by a spirit of liberality
in enlarging the privilege of acquiring French nationality
through birth and naturalization.

As already stated, the French rules of nationality were
originally placed in the Civil code. The present law is in-
tended to group them under a separate heading independent
of the Code and repeals the diverse articles and the act of
1889 as well as all prior laws in conflict with the new act.

194 GUIDE TO THE LAW OF FEANCE

The act itself is set forth in full in the 1928 Dalloz pocket
edition of the Civil code {Petit DaUoB.y

The principal changes include retention of French nation-
ality by the French wife on marriage to an alien, extension
of the circumstances under which French nationality can be
acquired through birth on French soil, facility of naturali-
zation, and permanent organization of the machinery for
forfeiture of nationality by naturalized citizens not worthy
of citizenship.

Prior to 1889 a French woman lost her nationality on mar-
riage to an alien. Under the act of that year she lost her
nationality only if the law of her husband's state permitted
her to acquire his nationality. The present law permits her
to retain French nationality or, perhaps more accurately,
provides (art. 8) for the retention of French citizenship in
the absence of a declaration to the contrary, on marriage.

Closely connected with conservation of citizenship, on mar-
riage, is the provision of article 1 of the new law which con-
fers irrevocable citizenship on a child born on French soil of
a French mother. A child born on French soil of a mother
also bom in France but not French at the time of the birth
of the child may repudiate French citizenship (art. 2).
Naturaiiza- The Civil codc as originally adopted made no provision
tion fQj. naturalization. The matter was successively regulated

by a decree of 1809, another of 1848, and a law of 1849.
This latter law was replaced by an act of June 29, 1867,
which, as incorporated in the Civil code (art. 8) in 1889,
constituted the fundamental legislation until 1927. The
legislation of 1927 is marked by an unusual degree of
liberality. The length of residence required is three years,
and in a number of instances a residence of one year is suf-
ficient. In addition, the provisions of article 13 of the
Code with respect to domicil in France were repealed so
that the usual period of residence required is 3 years in-
stead of 3 or 10 years, depending on admission to French
domicil.

Professor Niboyet, of the Strasbourg Faculty, in a recent
commentary on the new law, gives an interesting account

' DaUoz. Cade civil. Paris, DaUoz, 1928. 933 p. The act appears
at p. 23. ^ee also Journal officiel, August 10, 1927.

PRIVATE INTERNATIONAL LAW 195

of the reasons for its liberality. During the war the gen-
eral tendency in France was one of restriction upon the
acquisition of French nationality, it being thought that the
existing laws rendered its acquisition too easy. The change
in attitude was largely the result of the enormous increase
in foreign population after the war. The policy of the
new legislation is one of assimilation of this population.

The new law has been the subject of a number of com-
mentaries. That of Professor Niboyet, which has already
been referred to, was recently published as a Supplement
to the Manuel de droit international prive^ by Professors
Niboyet and Pillet. Professor Valery is the author of
another, published under the title, La naiionalite fran-
^aise}^ Mention should also be made of other commen-
taries by Audinet ^^ and Louis-Lucas.^^^ In addition, natu-
ralization under the act of 19^7 is dealt with in a manual for
foreigners in France, by J. Lidji and A. Le Moal.^^

The original Civil code, as compared with the liberality of ^^f^^®*"^
the Revolution, was marked by a spirit of hostility toward of For-
foreigners. But such provisions as articles 726 and 912, eignera
dealing with limitations on the privilege of foreigners to
inherit and to receive gifts irder vivos, were repealed by a
law of July 14, 1819, which accorded full capacity in these
respects, with an important qualification as to succession by
foreigners whose national laws do not permit French citizens
to inherit {droit de prSlevement) .

Other privileges have been accorded foreigners through
express legislative enactments. Protection of patents, de-
signs, trade-marks and literary and artistic property has

* Niboyet, J. P. Supplement au Manuel de droit international priv4
de Pillet et Niboyet. Commentaire de la loi sur la nationality du 10
aotlt 1927. Paris, Recueil Sirey, 1928. 167 p.

^*^ Valery, J. La nationalite frangaise (Commentaire de la loi du 10
aotit 1927). Paris, Librairie g§n6rale de droit et de jurisprudence,
1927. 88 p.

^Audinet, E. La nationalite frangaise. ]fitude critique de la loi
du 10 aotit 1927. Paris, Sirey, 1928. 47 p.

"* Louis-Lucas. La nationality frangaise. Paris, Recueil Sirey,
1929. 2 p. L, 343, [1] p.

"Lidji, J., et Le Moal, A. Manuel de I'^tranger en France. La
naturalisation selon la loi du 10 aotit 1927. Paris, Sirey, 1928.
174 p.

196 GUIDE TO THE LAW OF FRANCE

been extended by special legislation {see Literary and in-
dustrial property, supra). Likewise, foreign workers in-
jured in France enjoy the privileges of the Workmen's
compensation act of 1898 as long as they remain in France.
Some discussion of these legislative provisions may be found
in the various general treatises and manuals. In this con-
nection it should also be noted that certain callings are pro-
hibited to foreigners (See Pillet and Niboyet, Manuel^ p. 265
et seq,) They may not practice law as advocates, direct
(gerer) the publication of a newspaper, take part in the
administration of a trade-union or direct the management
of a private educational institution. Likewise, fishing in
French coastal waters is reserved to French citizens. There
are also regulations concerning the practice of pharmacy,
based on reciprocity, and a French diploma is required in
order to practice medicine. In addition, French law re-
quires that three-fourths of the crew of a French merchant
vessel be French and that one-half of its owners be French.

With respect to civil rights and privileges in general, the
important positive provision is article 11 of the Civil code^
which provides for the extension of the same civil rights and
privileges to foreigners in France as are accorded in their re-
spective countries to French citizens by treaty. This article
has been the subject of an extensive literature, particularly
with respect to the interpretation of the term civil rights and
privileges (droits civils). According to Professors Pillet
and Niboyet {Mmmel^ p. 76 et seq.) article 11 has received
three distinct doctrinal interpretations.

Professor Demolombe in his Traite de la publication^ des
effets et de V application des lois^^ (v. 1, p. 862 et seq,)
takes the position that the term droits civUs is the equivalent
of private civil rights and that in the absence of treaty the
foreigner in France does not enjoy any private rights, with
certain exceptions. This view has now been universally re-
jected.

"Demolombe, C. Cours de Code Napol§on. Vol. I. Traite de la
publication, des effets et de Tapplication des lois en general. 6. ^d.
Paris, Lahure, 1880. See Civil law for a discussion of Demolombe's
work on the Civil code.

PRIVATE INTERNATIONAL LAW 197

In their general treatise on civil law (5th ed., v. 1,
p. 497), Aubry and Kau take the position that article 11 was
intended to apply only to such rights or privileges as are
generally denied foreigners under the principles of interna-
tional law as accepted generally by civilized nations, for-
eigners being permitted to enjoy other privileges, even in the
absence of treaty. This view is often represented as that
taken by French courts.

The third view is referred to as that of Demangeat and
Valette (cf. Demangeat, Histoire de la condition civile des
Strangers en France ^^ and Valette, Explicaiion sommaire ^^)
and is actually advocated by Professors Surville and Ar-
thuys and Despagnet in their manuals on private interna-
tional law. Under this view the t^rm droits civUs in article
11 only applies to such rights or privileges as are expressly
denied foreigners.

According to Professors Pillet and Niboyet, French juris-
prudence first followed closely the theory of Demolombe,
then adopted that of Aubry and Kau and now seems to be
leaning towards the views of Demangeat and Valette.

Mention should be made of the fact that discussions of
the problems arising out of the application of article 11
appear in the treatises on civil law as well as in those on
private international law. An extensive discussion may be
found in Aubry and Eau (v. 1, p. 471, et seq.). There
is also a recent text devoted to civil capacity of foreigners in
France, by Batifol.^^^

Before leaving the subject of privileges of foreigners in
France, attention should again be called to Professor Fil-
let's work on juristic persons in private international law,^®
already referred to in connection with associations doing
business in France. This work, it will be recalled, contains

"Demangeat, C. Histoire de la condition civile des toangers en
France dans I'ancien et dans le nouveau droit. Paris, Joubert, 1844.
424 p.

"Valette, A. Explication sommaire du livre premier du Code Na-
poleon et des lois accessoires. Paris, Marescq, 1859. x, 448 p.

^''^Batifol, H. La capacity civile des strangers en France. Paris,
Recneil Sirey, 1929. 322 p.

"Pillet, A. Des personnes morales en droit international prive.
Paris, Recueil Sirey, 1914. 434 p.

Laws

198 GUIDE TO THE LAW OF FRANCE

a valuable discussion of the privileges of foreign corpora-
tions in France.

Mention might also be made here of a recent short work
by M. Lachaze ^^ dealing with aliens under French public
law.
?o^*^^ ^^ Conflict of laws in the narrower sense concerns the prob-
lem of determining the proper rule of internal law (French
or foreign) to be applied to a fact situation by a French
court when some or all of the operative facts are non-French.
The French approach to the problem is different from that
ordinarily employed by a common-law court. This differ-
ence can, perhaps, be best pointed out by reference to concrete
cases.

French and New York rules with respect to both formal
and substantive validity of a marriage are different. New
Yorkers marry in France or French citizens marry in New
York. Having determined that foreigners enjoy the privi-
lege of marrying in France, a French court would apply
New York law with respect to the capacity of New Yorkers
to marry in France. Likev/ise, because of a provision in
article 3 of the Civil code, the capacity of French citizens
to maiTy in New York would be determined by French law.
In both cases New York and French law would be given
extraterritorial effect as the national law of the parties.
There are several different theories as to the circumstances
under which law should be given extraterritorial effect.
Some reference to these theories may be of value.

During the pre-code period when customary law varied
from province to province, not only in France but on the
entire continent, the interprovincial conflicts of laws gave
rise to three schools of thought usually designated as the
Italian, French, and Dutch schools, all of which received
extensive discussion in Professor Laine's important and
classical work, Introduction au droit irhternational priveP
The French school, represented in the sixteenth century by
D'Argentre and DuMoulin and in the eighteenth by Froland,

"Lachaze, M. Les etrangers dans le droit public frangais. Paris,
DaUoz, 1928. 260 p.

^'Lain6, A. Introduction au droit international priy^. Paris,
Piclion, 1888-92. 2 v.

PRIVATE INTERNATIONAL LAW 199

BouUenois, and Bouhier, with varying degrees, may be said
to have had as its underlying theory " reality " of law tem-
pered by " personality." Customary laws were divided into
real and personal, the former being those pertaining to
things and the latter those pertaining to persons, and, of
course, attaching to the person wherever he might be. The
theory was that presumptively laws are real, personal laws
being the exception, but those laws which are personal are
enforceable extraterritorially, not through comity but be-
cause justice requires it. It is interesting to note that the
Louisiana Supreme Court in Saul v. His Creditors (5 Mart.
n. s., 569, 1827) had recourse to the various theories of
French and Dutch jurists in deciding a question involving
marital property rights and conflict of laws.

More recently, since codification, there have been three
theories of territoriality or extraterritoriality of law, advo-
cated by French writers. The territorial theory, having its
origin in the Dutch school and assumed to be the Anglo-
American theory, has had but few supporters in France.
While foreign to French positive law and jurisprudence, it
had, however, the support of Foelix and more recently of
Professor de Vareilles-Sommieres (cf. Synthese du droit
intemationaL^^ v. 1, nos. 117-156). The modern Italian
theory looks on law as personal, since laws are made for
persons, and consequently regards extraterritoriality as the
rule and territoriality as the exception. This theory is
usually credited to the statesman Mancini, and numbers
among its French adherents the eminent Professor Weiss,
whose treatise and manual have already been referred to.

The third view is that of Professor Pillet. Eejecting
the extremes of both the territorial and personal theories as
well as the bipartite division of the pre-code French school
into real and personal laws. Professor Pillet, like Savigny,
divides laws into two categories, those which, in their nature,
are extraterritorial and those which are territorial. He,
however, goes a step further in basing this division on the
social purposes of laws. He would seem to base extraterri-
toriality and territoriality on a consideration of the person

" La Brotie de Varemes-Sommi^res, G. La synthase du droit inter-
national priv4. Paris, Pichon, 1897. 2 v.

200 GUIDE TO THE LAW OF FRANCE

or persons to be benefited by a law. If it has as its purpose
the benefit of an individual, it is general in its scope and
applies extraterritorially. If it is intended to benefit the
national or collective group, it is territorial. In connection
with the different doctrinal theories which have been ad-
vanced or followed by French writers, attention should be
called to a thesis, devolution de la jurisprudence^ by Pro-
fessor Donnedieu de Vabres,^^ in which the author gives an
exposition of the various views adopted at different times
by French courts with respect to problems of conflict of
laws. A very good short discussion of the different theories
may be found in the manual of Professors Pillet and Niboyet
(p. m%et seq,).
Theory of While two different jurisdictions may make use of the
tions same concepts when dealing with problems of conflicts of
laws, the content given them may differ. Thus, nationality,
domicil, form, capacity, procedure, etc., may be important
terms to be used in reaching results, but their meaning may
differ. So, it is often important to determine what law should
govern in defining their content. This problem, which was
discussed by Professor Lorenzen in the Columbia Law Re-
view for 1920, under the title The theory of qualifications (20
Columbia Law Eeview 247), was first developed in 1899, in
such a manner as to attract attention, by Professor Bartin,
now of the Paris Law school (Clunet, 1897, pp. 225-255, 466-
495, 720-728). These valuable articles were later repub-
lished in an important work, Etudes de droit international
pHveJ^'^ Professor Bartin would ordinarily apply the law of
the forum in determining the nature of a given legal institu-
tion, but would admit two exceptions, namely, in determining
the nature of property as movable or immovable and in de-
termining the place where a contract has been " made." The
theory developed by Professor Bartin is described by Pro-
fessor Lorenzen in the article just referred to, which con-

^^ Donnedieu de Vabres, H. L'evolution de la jurisprudence fran-
gaise en matiere de conflit des lois. Paris, Rousseau, 1905. 644 p.

** Bartin, E. liltudes de droit international prive. Paris, Clievalier-
Marescq, 1899. 284 p.

PRIVATE INTERNATIONAL LAW 201

tains some reference to the theories of other writers. Judge ^e^^oi
Arminjon's Les qualiflcatioTis legdles ^^ is also important.

The second part of Professor Bartin's studies is devoted
to a discussion of the renvoi doctrine arising out of the dif-
ficulties encountered in determining whether, once it is found
that a foreign rule of law is competent, the foreign internal
rule or the conflict of laws rule should be applied. If an
American testator dies domiciled in France, in so far as
movables are concerned, a French court would apply his
national law in determining testate capacity, while an Amer-
ican court would apply the law of his domicil at the time
of his death. Immediately the question arises as to whether
a French court should refer the matter to the internal or
conflict of laws rule of his nationality, which here would be
those of his state in the United States. If reference is made
to the latter the matter would be referred back to the law of
France (the domicil) for settlement. Reference back or
renvoi was first adopted in France in the famous Forgo case
and since then has definitely become a part of French law.
Space does not admit of any discussion of the vast literature
relating to the doctrine. In addition to the excellent discus-
sion by Professor Bartin just mentioned and those to be
found in the various French texts and manuals, an exten-
sive and scholarly treatment of the problem, along with a
valuable bibliography and exposition of court decisions, may
be found in a thesis. La question du renvoi^^^ published by
Potu in 1913. A valuable series of articles by Professor
Laine appeared in the Revue de Lapradelle between 1906 and
1909.2* The problem has also been discussed by a number
of American and English writers, such as Professors

^^Arminjon, P. Les quaUfications legales en droit international
priv§. Paris, Recueil Sirey; Bnixelles, Weissenbruck, 1923. 18 p.
{Extr, de la Revue de droit international et de legislation compar^e,
1923, p. 272.)

^'Potu, E. La question du renvoi en droit international priv6.
Paris, Juris-classeurs, 1913. 361 p.

^ Lain6, A. La th^orie du renvoi en droit international priv^. 1906,
p. 605; 1907, pp. 43, 313, 661; 1908, p. 729; 1909, p. 12. {Extr, Revue
de droit international priv6.)

202 GUIDE TO THE LAW OF FRANCE

Schreiber and Lorenzen and Bate and Dicey.^^ In addition,
the various theories were dealt with in In re Tallmadge (181
N. Y. Supp. 336), in which the Surrogate's Court of New
York County came to the conclusion that the renvoi doc-
trine is not a part of New York law.

The best discussions of problems of conflict of laws in par-
ticular fields such as contracts, property, and succession are
to be found in the general treatises and manuals. A good
special study on respect for acquired rights as to movable
property was published in 1912 as a thesis by Mboyet, later
Suits by professor at Strasbourg.-^ With respect to immovables,
against Deviu's La propriete irmnohUiere des etrangers en France ^^

foreigners jg important.

Attention should be called to the provisions of articles 14
to 16 of the Civil code concerning suits by and against for-
eigners in France. Article 14, providing for jurisdiction of
suits brought by French citizens against foreigners, even
when not residing in France, is dealt with by Professor Bar-
tin in his Effets intemaiionaux des jugements ^^ and again in
the twelfth volume of the fifth edition of Aubry and Kau
(no. 748). Professor Bartin's name has already been men-
tioned in connection with his studies on the theory of quali-
fications and the ren/voi doctrine. Due to his standing in the
field of private international law his part in the revision of
the fifth edition of the classical work of Aubry and Kau is
particularly valuable in so far as problems in this field are
concerned. The same volume contains a discussion of article

^'Lorenzen, E. G. The renvoi doctrine in conflict of laws. 27
Yale Law Journal 508; The renvoi theory and the application of for-
eign law. 10 Columbia Law Review, 190, 327. Both articles give ex-
tensive bibliographies. Schreiber, Doctrine of the renvoi in Anglo-
American law. 31 Harvard Law Review 523. Also 29 Yale Law
Journal 214, 244. Bate, Th. Notes on the doctrine of renvoi in private
international law (1904). Dicey, Conflict of laws, 3d ed. (1922), p.
771 et seq.

^® Niboyet, J. Des conflits de lois relatifs k I'acquisition de la pro-
priete et des droits sur les meubles corporels k titre particulier : ^tude
de droit international priv^. Paris, Larose et Tenin, 1912. 575 p.

^'Devin, J. La propri^t^ immobili§re des strangers en France.
Paris, Roustan, 1926. 234 p.

^^Bartin, E. :6tudes sur les elfets internationaus des jugements.
Paris, Pichon et Purand-Auzias, 1907. v. 1. De la competence du
tribunal stranger.

PRIVATE INTERNATIONAL, LAW 203

15, providing for suit in France against a Frenchman on obli-
gations contracted abroad (no. 748), and of article 16 pro-
viding for bond to be given by foreign plaintiffs suing in
France (no. 747). The important question of lack of juris-
diction to settle controversies between foreigners, with its
numerous exceptions, is also dealt with in the same work
(no. 748, pp. 47-62). Attention should be called to the fact
that the entire subject is dealt with specially in volumes 5
and 6 of Professor Weiss's treatise. Keference should also
be made to Professor Pillet's Jurisdiction in actions hetween
foreigners^ in 18 Harvard Law Review 325, and to Professor
Beale's Jwisdiction of courts over fo^'eigners^ in 26 Harvard
Law Review 193. Mention might be made of two older
French works, Bonfils' Be la competence des tribunoMX^^
and a similar work by Lachau.^^ International conventions
concerning jurisdiction and execution of judgments are con-
tained in a collection published by Professor Pillet in 1913.^^ Foreign

The only positive provisions of French law relative to "*^^™®°*^
the execution and enforcement of foreign judgments in
France are those contained in articles 546 of the Code of
procedure and 2123 of the Civil code, with the result that
the insufficiency of legislative texts has left the matter
largely in the hands of the courts. In addition to the treat-
ment to be found in texts on conflict of laws and Professor
Bartin's work on the international effects of judgments, just
mentioned, an extensive discussion appears in Aubry and
Rau (v. 12, pp. 475-519). Execution of foreign judgments
was also dealt with in De Vexecution des jugements
Strangers ^^ by Lachau and Daguin.

^^ Bonfils, H. De la competence des tribunaux f rangais k I'egard des
strangers en mati^re civile, commerciale et criminelle. Paris, Durand,
1865. 392 p.

'* Lachau, C. De la competence des tribunaux f rangais k regard des
strangers en matidre civile et commerciale. Paris, Larose et Forcel,
1893. 468 p.

'^Pillet, A. Les conventions internationales relatives k la comp^
fence judiciaire et k Fexecution des jugements. Paris, Larose et
Tenin, 1913. 401 p.

''^ Lachau, C, and Daguin, C. De I'ex^ution des jugements etran-
gers d'apr^s la jurisprudence frangaise. Paris, Larose et Forcel,
1889. 240 p.

49926°— 31 14

204 GUIDE TO THE lAW OF FRANCE

PUBLIC LAW

If internal public law is defined so as to comprise all the
rules regulating the relations between a state and its citizens
or subjects, then criminal law and procedure and civil proce-
dure, at least that portion pertaining to courts, their juris-
diction and organization, should be included. But it has been
found to be more convenient to discuss these topics sepa-
rately. This leaves for discussion under the present heading
constitutional law, administrative law, and public finance
and taxation. Before turning to these separate topics it
might be worth while to call attention to several short texts
which give a general notion of French government and pub-
lic law.

The principal elementary student works on public law
are those of Professors Eenard,^^ Moye,^^ Nezard,^^ and
Bonnard.^^ The Cov/rs elementaire de droit puhlic^ by Profes-
sor Kenard of the Nancy Law School seems to be the best.
An even more elementary but comprehensive work on
French government is Professor Barthelemy's Le gouveme-
ment de la France^^ an English translation of which was
published by J. Bayard Morris, of Oxford, under the title
The government of France,^^ Another elementary work on
French government which is worth consulting is the Eng-
lish translation by Raymond Poincare's How France is gov-
erned^^^ originally published for the use of non-university
students.

^^Renard, G. Cours 616mentaire de droit pubUc; droit constitu-
tionnel, droit administratif, droit financier. Paris, Recueil Sirey,
1922. 361 p.

'^Moye, M. Precis elementaire de droit pubUc frangais. 2. ed.
Paris, RecueU Sirey, 1920. 289 p.

^^Nezard, J. ^filements de droit public. 2. ed. Paris, Rousseau,
1922. 403 p.

^'^Bonnard, R. Precis elementaire de droit public. Paris, Recueil
Sirey, 1925. 376 p.

'^ Barthelemy, J. Le gouvernement de la France; tableau des in-
stitutions politiques, administratives et judiciaires de la France con-
temporaine. Nouv. ed. Paris, Payot, 1925. 244 p.

^^ BartMlemy, J. The government of France. Translation by J.
Bayard Morris. London, G. Allen & Unwin, [1924]. 222 p.

'^Poincare, R. How France is governed. Tr. by Bernard Miall.
New York, R. M. McBride & company, 1919. 336 p.

PUBLIC LAW 205

A more scholarly and valuable work on public law in
general is Professor Hauriou's Principes de droit public^^
The general theory of the state, constitutional law, and ad-
ministrative law are also dealt with in a recent work by X.
Combothecra.*^ In addition, attention should be called to a
collection of essays on topics of public law, by a number of
French and foreign writers, in commemoration of the late
Professor Hauriou.*^^

From a conception of sovereignty and of the state which
can be expressed in the maxim, " I am the State," or even
from the conception as developed in Rousseau's Du contrat
social^ to modern conceptions of limited sovereignty, the
functional state, and state responsibility for injuries com-
mitted by officers, is a long step. The French Revolution
brought about fundamental changes in the overthrow of
the old regime, and v/hile there has from time to time been
temporary reaction, the evolution in governmental and po-
litical theories in France has witnessed a gradual but steady
march to a new order in political philosophy. A number of
writers give to sovereignty a changed content. According
to some it is no longer a workable concept. A new doctrine
of state responsibility has been evolved, and with it admin-
istrative law has been developed to a point not yet attained
in English and American jurisdictions. Much of the litera-
ture produced in France in the last few years is of particu-
lar value, not only because it gives an exposition of French
public law, but because it contains so much that represents
an antithesis to classical theories. To some, perhaps, it
embodies ultra modern thought in the problems of the State.
Professor Duguit, dean of the Law School of the University
of Bordeaux, in a small work entitled Les transformations
du droit puhlio^^^ gives an account of the changes which
have been taking place. While by no means acceptable to all,
his ideas on the change from the imperialistic conception of

*^Hauriou, M. Principes de droit pubUc. 2. ed. Paris. Recueil
Sirey, 1916. 828 p.

"" Combothecra, X. Manuel de droit public general du monde
xjivUise. Paris, Sirey, 1928. 365 p.

*^* Melanges Maurice Hauriou. Paris, Sirey, 1929. 832 p.

*3 Duguit, L. Les transformations du droit public. Paris, Colin,
1913. 285 p. Reprint 1921.

206 GUIDE TO THE LAW OF FRANCE

sovereignty to public service as the function of the State,
the development of administrative law and state responsi-
bility, are well worth considering as a background to a study
of French public law. To these subjects we shall recur.

Before passing on to constitutional law, attention should
be called to a comprehensive collection of political and ad-
ministrative laws, Code des lois politiqiies et administra-
tives^^^ which was published in parts between 1887 and 1905.
Mention should also be made here of the principal periodicals
devoted to public law in general. Of these the most impor-
tant is the Revue du droit public et de la science politique^
now under the direction of Professor Jeze. Other reviews
are the Revue des sciences politiques and Revue politique et
parlementaire. In addition, useful articles appear from time
to time in the periodicals discussed in connection with civil
law.

CONSTITUTIONAL LAW

The history of constitution making in France begins
with the Constitution of September 3, 1791, adopted by the
Constituent Assembly as the first written constitution, and
ends with the constitutional laws of 1875, which, as revised,
constitute the cornerstone of the present political scheme.
In the introduction to his work on French government, just
referred to, Professor Barthelemy calls attention to the fact
that nearly all the subsequent governments have left their
impression on the administrative foundation built by
Napoleon, with the result that French institutions do not
present "the appearence of a fine, foursquare building,
whose parts are all harmoniously arranged according to a
preconceived plan." There has been, however, when one
considers the numerous political changes of the last cen-
tury, a remarkable continuity and adaptation of the older
foundation to new needs.

The present constitutional organization was not provided
for in one document but in five separate laws enacted by
the National Assembly during the course of 1875. Of

^ Dalloz. Les codes annotes d'apres la doctrine et la jurisprudence :
Code des lois politiques et administratives. Paris, Dalloz, 1887-1905.
6v.

CONSTITUTIONAL LAW 207

these five laws only three received constitutional form. The
other two, concerning the election of senators and deputies,
were subjected to the same conditions as ordinary legisla-
tion. It is an interesting fact that, v/hile the Third Repub-
lic has been longer lived than any other government since
the Revolution and now seems destined to be the permanent
form of government, the assembly which created it was
largely anti-republican and monarchist. At the same time
all republicans of every shade were willing to lay aside their
particular beliefs in order to establish a republican form
of government as a fact, with the result that the Constitu-
tion of 1875 represents a compromise between conflicting
traditions of monarchy and republic which was, when
adopted, considered to be temporary; by monarchists, as an
expedient to await the proper moment for a return to
monarchy; by republicans, as a makeshift until the Repub-
lic could be placed on a firm foundation. The most im-
portant revision since 1875 was that of 1884.

The texts of the various constitutions and political laws
since 1789 are contained in Les constitutions de la France ^^
originally published by Professors Duguit and Monnier.
A fourth edition was recently published by Professor Du-
guit, now dean of the law school of the University of Bor-
deaux. In addition to the texts, this work contains a section
giving the historical background of each of the constitutions.

The two great classics on French constitutional law are
Professor Esmein's Elements de droit constitutionnel ^^ and
Professor Duguit's Traite de droit constitutionnel J^'^ Both
works are devoted in large part to theory and represent ex-
tremely interesting and opposing points of view. The for-
mer, originally the work of Professor Esmein of the Paris
Law School and recently revised by Professor Nezard of the
law school of the University of Caen, follows in the main

"^Duguit, L., et Monnier, H. Les constitutions et les principales
lois poUtiques de la France depuis 1789. 4. ed. Paris, Librairie g€ne-
rale de droit et de jurisprudence, 1925. 385, 61 p.

"*" Esmein, A. Elements de droit constitutionnel f rangais et compart.
8. ed. rev. par. H. Nezard. Paris, Recueil Sirey, 1927-28. 2 v.

*^ Duguit. Traits de droit constitutionnel. 2. ed. Paris, de Boccard,
1921-25. 5 V.

208 GUIDE TO THE LAW OF FRANCE

classical thought. Consisting of two volumes, the first is de-
voted to a comparative study of the underlying theories of
the political institutions and laws of western Europe; they
are found to be derived from two sources, the English con-
stitution and the French Eevolution, along with the move-
ment of ideas which preceded the latter. With these two
sources as a background, but with copious references to the
institutions and theories of other countries, this volume is
taken up with a discussion of representative government, the
bicameral legislative system, parliamentary government,
national sovereignty, separation of powers and individual
liberties. The second volume is devoted to the French con-
stitutional system. Basing their theories of the state on
sovereignty and personality as fundamental, Professors
Esmein and Nezard reject the theories of Professor Duguit
as contrary to the outstanding principles on which the public
law of France and a large part of the civilized world have
been based since the American and French Revolutions.

The treatise by Professor Duguit, dean of the law school
of the University of Bordeaux, consists of five volumes, of
which the first two are devoted to general theory, the third
mainly to State responsibility, and the last two to French
political organization and political liberties. The general
survey contained in the last two volumes is an excellent
exposition of French institutions and liberties. The first
three volumes deal with the various doctrines developed by
Professor Duguit in his earlier works, all of which have
been mentioned in connection with the chapter on legal
philosophy .^^ In addition, the third volume gives an ex-
tremely valuable exposition of the principles of adminis-
trative law. It is in his rejection of the classical con-
cept of sovereignty and the personality of the state that
Professor Duguit deserves his reputation as an ultra-
modernist. Probably no French writer on public law has
been as influential with the younger generation, and cer-
tainly the theories of no modern French writer have been
as much discussed, with, both praise and condemnation.
To one unacquainted with French political thought the

^^ 8ee Legal philosophy. Pages 43-45, notes 9(3 et seq.

CONSTITUTIONAL. LAW 209

discussion in the first part of his work should be of par-
ticular value because of his searching criticism of accepted
doctrines, with full bibliographic notes, his answers to his
critics, and his exposition of his own ideas.

Another important work is the Traite element aire ^^ by
Professors Joseph Barthelemy, of the Paris Law School,
and Paul Duez, of the Law faculty of the University of
Lille. This one volume text devotes but little space to
theory, and gives in convenient form an excellent outline of
the French constitutional organization. The Precis de droit
oonstitutionnel^^ by Professor Hauriou, dean of the law
school of the University of Toulouse, is an important stu-
dents' text.

There are several other texts designed primarily for the
use of students. The Mmmel ^^ by Professor Duguit gives a
summary of the material discussed in his treatise. Professor
Hauriou is also the author of a later elementary work.
Precis eleTnentaire,^^ Reference is sometimes made to the
works of Professor de Lapradelle,^^ who has already been
mentioned in connection with conflict of laws, and of Pro-
fessor Moreau.^* Neither work has, however, the reputation
of the elementary treatises of Professors Duguit and
Hauriou.

Logically, the different topics dealt with in works on con-
stitutional law should be discussed at this point. In order
to avoid repetition, it is believed to be more expedient to
postpone their discussion until some reference has been made
to the outstanding works on administrative law.

*' Barthelemy, J., et Duez, P. Traits ^lementaire de droit con-
stitutionnel. Paris, Dalloz, 1926. 713 p.

*^" Hauriou, M. Precis de droit constitutionnel. 2. M. Paris, Re-
eueil Sirey, 1929. 760 p.

"Duguit, L. Manuel de droit constitutionnel. 4. 4d. Paris, de
Boecard, 1923. 605 p.

"Hauriou, M. Pr^is ^lementaire do droit constitutionnel. Paris,
Recrueil Sirey, 1929. 332 p. La licence en droit; see Legal educa-
tion, page 31, note 57.

^^ Lapradelle, A. G. de. Cours de droit constitutionnel. Paris,
Pedone, 1912. 592 p.

*^Moreau, F. Precis 616mentaire de droit constitutionnel. 9. ^d.
Paris, Recueil Sirey, 1921. 595 p.

210 GUIDE TO THE LAW OF FRANCE

ADMINISTRATIVE LAW

Administrative law in France comprises, in the main,
that branch of public law which regulates the organization
of the administrative authorities, their powers, and their
relations to each other and to private individuals. Sepa-
rate and distinct from the civil law, it is administered by a
separate body of tribunals which have jurisdiction over con-
troversies between the administration and private indi-
viduals and over conflicts between administrative and other
courts.

The general outlines of French administrative law are
given in an article by Professor Garner, of the University
of Illinois, in the Yale Law Journal for 1923-24 (v. 33,
p. 597). This article seems to be the best general survey
published in English. Professor Dicey of Oxford has also
dealt with the subject. He was the author of an article,
" 'Droit administratif^ in modern French laio^'' published in
the Law Quarterly Eeview in 1901 (v. 17, p. 302). He
devoted a chapter of his La%0' of the Constitution^'^ to
French administrative law. Some discussion may be found
in Professor Goodnow's Comparative administrative Icmjo^^
Due to its age this work does not reflect the more modern
developments.

The classical modern French works are those of Pro-
fessors Hauriou, dean of the Law School of the University
of Toulouse, and Berthelemy, dean of the Law School of the
University of Paris.
Treatises 'pj^^ Precis de droit administratif ^^ by Professor Hauriou,
now in an eleventh edition, has the reputation of being
original and scholarly, but somewhat abstract and difficult
to read. Professor Berthelemy's Traite elementaire ^^ is gen-

^ Dicey, A. V. IntrcMiuction to the study of the law of the Constitu-
tion. 8th eel, 1915. Reprint 1924. London, Macmillan and com-
pany. 577 p.

s^ Goodnow, F. J. Comparative administrative law. Student's ed.
New York and London, Putnam's sons, 1903. 2 v. in. 1.

^^ Hauriou, M. Pr§cis de droit administratif et de droit public.
11. ed. Paris, Recueil Sirey, 1927. 1068 p.

^8 Berthelemy, H. Traite Elementaire de droit administratif. 11.
M. Paris, Rousseau, 1926, 1174 p. Supplement 1927. 148 p.

ADMINISTRATIVE LAW 211

erally considered to be an excellent practical guide as well
as a useful theoretical work. Both works take up adminis-
trative organization, public service, judicial control of ad-
ministrative acts and state responsibility.

Another important treatise is that of Professor Jeze, Les
principes generaux du droit adrrdnistratif ^^ which, influ-
enced by the earlier works of Professor Duguit, was first
published in 1904 in pamphlet form, was revised and repub-
lished in a second edition in 1914, and in a third, in 1925-
1930. These editions are devoted to a technical study of ad-
ministrative law, of governmental agents and their acts, and
of the theory of redress. Eeference is also sometimes made
to Professor Moreau's Mamiel de droit ctdministratif^^
which, while less valuable than the works already mentioned,
is also important. The Trcdte elemerhtaire ^^ by Simonet, at
one time a public official, was formerly very popular in ad-
ministrative circles, but is now of less importance.

Mention might well be made of several books for students
which, while informative, make no pretense of being other
than elementary. The most important are the Precis by
Professors Hauriou,^^ KoUand,^^ and Bonnard.^*

Some reference should also be made to a number of classics
which played an important part in the development of ad-

^ J^ze, G. Les principes g6n6raux du droit administratif :

— . t. 1. La technique Juridique du droit public francais. 3. 4d.
Paxls, Giard, 1925. 482 p.

— . t. 2. La notion de service pubUc. — Les individus du service pu-
blic le statut des agents publics. 3. ^d. Paris, Giard, 1930. 848 p.

— . t. 3. Le fonctionnement des services publics. 3. ^d. Paris,
Giard, 1926. 540 p.

®*'Moreau, F. Manuel de droit administratif. Paris, Fontemoing,
1909. 3 p. L, 640 p.

^^ Simonet, J. Traits 61toentaire de droit public et administratif.
4. §d. Paris, Pichon, 1902. 965 p.

^'Hauriou, M. Precis ^lementaire de droit administratif. Paris,
Recueil Sirey, 1925. La licence en droit; see Legal education.
Page 31, note 57.

^ Holland, L. Droit administratif. One of the Petits precis Dalloz ;
see Legal education. Page 31, note 57.

"Bonnard, R. Precis ^l^mentaire de droit administratif. Paris,
Recueil Sirey, 1926. See La licence en droit. Page 31, note 58.

212 GUIDE TO THE LAW OF FRANCE

ministrative law and are still sometimes cited. The Cours
de droit administratif ^^ by Professor Ducrocq, of Paris,
consists of seven volumes and, in addition to administration,
deals with general principles of public law and finance.
Professor Dufour's Traite general ^^ consists of 12 volumes,
including a 4-volume supplement published in 1901 by
Taudiere. The Traite ^'^ by Professor (and Senator) Batbie
consists of nine volumes, the eighth being an encyclopedia
of administrative law. Another work to which reference is
sometimes made is Aucoc's Confereiioes sv/r V administra-
tion,^^
^^?'*^°' There are several encyclopedias devoted entirely to ad-
ministrative law. The most important is the Repertoire du
droit adrrdnistratif ^^ which was founded by Bequet in 1882
and published between 1883 and 1914 with the collaboration
of a number of public officials. It is usually cited under the
name of its founder. Eeference is often made to the Die-
tionnadre de Vadministration^^^ by Block, a fifth edition of
which was published in 1905. A supplement was added in
1907. A similar work is that of Blanche,^^ a second edition

^Ducrocq, T. Cours de droit administratif et de legislation fran-
gaise des finances, avec introduction de droit constitutionnel et les
principe9 du droit public. 7. M. Paris, Fontemoing; BM^re, 1897-
1905. 7 V.

^Dufour, G. Traits g^n^ral de droit administratif applique. 3.
6d. avec supplement par Taudiere. Paris, Marchal et Billard, 1870-
1901. 12 V. including Supplement of 4 v.

*^ Batbie, A. Traits th^orique et pratique de droit public et ad-
ministratif. 2. 6d. Paris, Larose et Forcel, 1885-94. 9 v. includ-
ing Supplement by Boillot.

^ Aucoc, L. Conferences sur I'administration et le droit administra-
tif faites h I'Ecole des ponts et chauss^es: v. 1, Organisation et
attributions des pouvoirs publics. 3. ed. Paris, Dunod, 1885. v.
2, Bdgles g^n^rales relatives h I'execution des travaux publics.
Service des ponts et cbaussees. Finances publiques ... 3. ed.
Paris, Dunod, 1886. v. 3, Des routes nationales et departemen-
tales ... 2. ^d. Paris, Dunod, 1882.

*^ Bequet, Laferriere and Dislere. BSpertoire du droit adminis-
tratif. Paris, Dupont, 1882-1914. 28 v.

^® Block, M. Dictionnaire de I'administration frangaise. 5. ed.
by E. Magu^ro. Paris, Berger-Levrault, 1905. 2 v. Supplement.
1907. 112 p.

^^ Blanche, A. Dictionnaire general d'administration. Nouy. ^d. par
de Mouy. Paris, Dupont, 1904. 2 v.

ADMINISTRATI^TE LAW 213

of which was published in 1904. Both are considered to
be somewhat old for practical purposes, but they are still
usable. Good discussions of administrative matters are also
to be found in the Repertoires of Dalloz and Fuzier-
Herman.

Laws and decrees pertaining to administrative matters Codes
are collected in convenient form in the Code adTmnistrar
tif ^2 published by Dalloz and forming a part of the Petite
collection Dalloz and in the Code administratif ^^ compiled
by Delpech and forming a part of the Collection d-es Petits
codes Carpentier,

Attention should be called to the reports of administra-
tive decisions, Recueil des arrets du Conseil d'^^tat^ which
were begun in 1821 and now appear monthly. The Recueil
is sometimes cited under the name Panhard, but more
usually under the name Lebon. Administrative decisions
of the Council of State prior to 1839 were also collected in a
7- volume work by Eoche and Lebon published between 1839
and 1846. It should be recalled that both Dalloz and Sirey
devote a part of their Recueils to administrative decisions.

In connection with administrative decisions, an important
contribution on administrative law will be found in a collec-
tion of notes by Professor Hauriou on decisions of the Coun-
cil of State and Tribunal of Conflicts, contributed between
1892 and 1928 to the Recueil Sirey P^

The organization of the administrative hierarchy in Administra-
France is a matter of detail which falls outside of the scope l^ation^^^
of this book. National, regional, and local administration
are dealt with in the works on administrative law which
have already been referred to. Very good discussions may
be found in Professor Berthelemy's treatise and Professor
Hauriou's Precis.

Some reference, however, should be made to the distin-
guishing features of French administrative law.

'^ Dalloz. Code administratif. Paris, Dalloz, 1928. 1389 p.

" Delpech, J. Code administratif, avec Supplement. Paris, Recueil
Sirey, 1928. 932 p. Supplement, 61 p.

"^ Notes d'arrets sur decisions du Conseil d'Etat et du Tribunal
des Conflits publics au " Recueil Sirey " de 1892 k 1928 et classes par A.
Hauriou. Paris, Sirey, 1929. 3 v.

Tribunals

214 GUIDE TO THE LAW OF FRANCE

Unlike the practice of Anglo-American jurisdictions of
submitting controversies arising out of tiie operation of the
public service to the ordinary courts, in France, suits of this
kind when against the Government, are usually within the
jurisdiction of separate administrative tribunals, whose per-
sonnel is drawn from the administrative organization. In
view of this fact, it may seem to an Anglo-Saxon something
of a paradox to say that the individual is probably better
protected against the arbitrary acts of administrative
officials than in any other country. That the latter is true
is largely due to the fact that the administrative tribunals
have been able to build up a body of case law providing
for new remedies for the protection of private individuals
with a degree of skill and ingenuity which have drawn the
admiration even of such a redoubtable critic of the French
system as Professor Dicey. Indeed, it is surprising to find
in France, where so much of the law is codified, that ad-
ministrative law is almost entirely the result of judicial
decision. Leaving aside certain special courts, the ad-
ministrative tribunals are the prefectoral councils {ConseUs
de prefecture) , the Council of State {ConseU cPEtat) and the
Tribunal of Conflicts {Trihwial des Con-flits),

French administrative courts, with particular reference to
the Council of State and the Tribunal of Conflicts, were
described by Professor Duguit in an article appearing in the
Political Science Quarterly (v. 29, p. 385). According
to Professor Duguit the body of case law worked out by
the Council deals with three principal topics: Acts ultra
vires {exces de pouvoir) ; misapplication of power {detourne-
7/ient de pouvoir) and the liability of the administration to
individuals. Under the first heading the Council annuls
such acts done under administrative authority as are in
excess of power. The only departments of the Government
which are exempt are the legislative and judicial. Even
the President is subject to the control of the Council in so
far as administrative acts are concerned. Such acts, how-
ever, as concern the relation of the President to Parliament
under the Constitution or are performed in his diplomatic
capacity are without its jurisdiction. Under the second
heading, it annuls acts which arise out of misuse of power

ADMINISTRATIVE LAW 215

{detournement de pouvoir). Misapplication of power is
present in cases where administrative acts, while not con-
travening any express legal provision, are performed by
administrative officials for a purpose other than that which
the law had in view when it conferred authority. It is in
the last field (governmental responsibility) that the juris-
diction (Of the administrative courts has received its greatest
extension within the last few years (infra) .

The Tribunal of Conflicts has jurisdiction of controver-
sies arising out of conflicts between judicial and adminis-
trative claims to jurisdiction.

Another article dealing with court control of administra-
tive acts but not specially with organization of administra-
tive courts is Judicial control of administratis) e and
legislative acts by Professor Garner, in the American
Political Science Eeview (v. 9, p. 637) .

There are several French works dealing especially with
the organization, jurisdiction, and powers of administrative
courts. Though old, the Traite de la jtmdiction adminis-
trative "^^ by Laf erriere, formerly vice president of the Coun-
cil of State, is still an extremely valuable text. Long the
classic on judicial control, it is extensively employed in
administrative circles. Two recent works may be used to
supplement, if not to replace Laferriere's treatise. While
not as broad in its scope, Le contrdle jundictionnel'^^ by
Raphael Alibert, professor at the Paris School of Political
Sciences, has the reputation of containing an excellent ac-
count of jurisdiction and procedure with respect to ultra
vires acts. Professor' Appleton, of the University of Lyon,
in his Contentieux administratif "^^ gives an extremely valua-
ble short account of jurisdiction, organization, and procedure
in administrative courts. In the words of the author, the
work is intended to be something more than a manual, but
something less than an encyclopedia. Both works give a

^* Laf erriere, E. Traite de la juridiction- administrative at des
recours contentieux. 2. 6d. Paris, Berger-Levrault, 1896. 2 v.

"AUbert, R. L-e controle juridictionnel de Tadministration au
moyen de recours pour exc^s de pouvoir. Paris, Payot, 1926. 391 p.

'® Appleton, J. Trait§ 616mentaire du contentieux administratif;
competence, juridictions, recours. Paris, Dalloz, 1927. 681 p.

216 GUIDE TO THE LAW OF FRANCE

comprehensive survey of the cases in which the adminis-
trative courts will and will not give relief.

RESPONSIBILITY OF THE STATE FOE TORTS

Returning to the three types of cases in which the juris-
prudence of the Council of State has been developed within
recent years, the last, state responsibility, should be the
most interesting to the student of French public law whose
concern is primarily comparative. It jis here that French
law and jurisprudence have produced doctrines which should
be applicable regardless of internal local administrative
organization. The very fact that the modern French
theory has been so largely developed by the Council of State
on its own initiative without extensive intervention of posi-
tive law is not only a refutation of criticisms of the French
system, like that of Dicey, who expressed the opinion that
an administrative court drawn from the administrative
class would favor the administration, but affords an in-
teresting basis of comparison with the Supreme Court of
the United States whose independent position has enabled
it to develop doctrines which are of social and political as
well as judicial significance.

One may get the impression from general reading that the
French administrative courts tend to protect unduly the
official class by shifting the burden of responsibility from
the shoulders of the official to the State. This seems to be
partially responsible for Professor Walton's criticism of
French rules of responsibility. {French admirdstroiiive
courts ojnd nrhoder-n French lam a^ to the responsibUity of the
state ^ 13 111. Law Review 204.) French law with respect
to the responsibility of master and servant is, in the main,
similar to that under the common law, both master and
servant being responsible if the servant is guilty of fault
when acting in the scope of the master's business. (If any-
thing, the responsibility of the master is more extensive
under French law.) This rule has not, however, been car-
ried over into the field of administrative law, with the result
that if the case is one for governmental responsibility, aris-

RESPONSIBILITY OF THE STATE FOR TORTS 217

ing out of official fault, the state or one of its subdivisions Personal
is alone responsible, the rule being one of non-cumulation p^^^®*^^^^
of liability. Where the official has acted on his personal Personal
account, the traditional doctrine has been that he alone isbni^"^^
responsible for his fault and may be sued in a civil court.
Whether the official is responsible or not depends on whether
he was acting officially or in his personal capacity, a trouble-
some question. Indeed, the difference between personal and
official fault is one of the most difficult subjects in French
administrative law. Beginning with Laf erriere every writer
on administrative law has attempted to fix precisely the re-
spective limits of each. The matter has also been dealt with
from the point of view of the civil responsibility of the
public servant in a number of theses, of which the more
recent are Depaule's Responsdbilite des fonctionnaires^^'^
Nezard's Theorie fwridique de la fonction publique^^ Ber-
nard's De la responsahilite des fonctionnaires^^ Nesmes-Des-
marets' De la 7'esponsabilite des fonctionnaires^^^ Berteaud's
La responsabilite personnelle des fonctionnaires^^^ Cot's La
responsahilite civile,^^ and Dupeyroux's Faute fersonndle
et faute du service publio,^^ A short but valuable discussion
may also be found in the third volume (p. 269 et seq.) of
Professor Duguit's treatise on constitutional law, in which
the learned writer gives the views of various writers as well
as his own.

"Depaule, J. lEtude historique sur la responsabilit^ des fonction-
naires publics en droit frangais depuis 1789. Carcassonne, A. Gabelle,
1902. 238 p.

^^Nezard, H. Theorie juridique de la fonction pubUque. Paris,
Larose, 1901. 2 p. 1., 770 p.

'® Bernard, E. De la responsabilit4 personnelle des fonctionnaires
administratifs dans leurs rapports avec les particuliers. Bordeaux,
1909. 214 p.

^ Nesmes-Desmarets, R. de. De la responsabiIit6 des fonctionnaires
de I'ordre administratif et judiciaire envers les particuliers. Paris,
Giard et Briere, 1910. 352 p.

s^Berteaud, C. De la responsabilit6 personnelle des fonctionnaires
administratifs envers les particuliers. Bordeaux, 1922. 158 p.

*^ Cot, P. La responsabiiit^ civile des fonctionnaires publics. Paris,
Pichon, 1922. 334 p.

83 Dupeyroux, H. Faute personnelle et faute du service public.
Paris, Rousseau, 1923. 294 p.

218 GUIDE TO THE LAW OF FRANCE

Coexistence Mention should be made of recent extension of the scope
AdmTnis^" of state responsibility so as to impose responsibility on the
trativeRe- state whcre there is personal fault. In an article appear-
sponsibiiity .j^g .j^ ^j^^ Revue du droit jmUic in 1914 (p. 572) Professor
Jeze, after raising the question of the propriety of the tra-
ditional doctrine that the state is not responsible when the
damage arises out of personal fault, expressed the hope that
the Council of State would extend administrative liability
so as to include responsibility where the governmental agent
acts on personal account. Subsequentlj^, in the Lemonnier
case, decided in 1918 (S. 18-19. 3, 41 ; also (1918) Lebon, 772),
the Council of State seems to have followed the suggestion
of Professor Jeze in applying the doctrine of administrative
responsibility when it had already been held in a civil court,
in a case arising out of the same facts, that an official was
guilty of personal fault and therefore responsible. The
case has been commented on, notably by Professor Jeze in
the Revue du droit public in 1918 (p. 42) and Professor
Fliniaux of Toulouse in the same review in 1921 (p. 333).
It is interesting to note, however, that neither Professors
Duguit nor Hauriou find that it necessarily detracts in any
way from the traditional doctrine, in that, under their view,
the decision (arising out of responsibility for a wound re-
ceived from a shot fired at a public shooting gallery erected
at a public fete) merely recognizes responsibility for two
faults, that of the official and that of the administration,
the latter being not the fault of the official but the fault of
the administration in not adequately providing for the
proper functioning of the public service. This ingenious
explanation of Professor Duguit is supported by reference
to other cases and appears at page 478 and following, of the
third volume of his treatise on constitutional law. Some dis-
cussion and the doctrine of the question of the coexistence of
civil and administrative responsibility of the governmental
agent and the Government may also be found in the theses
of Berteaud, Cot, and Dupeyroux already referred to.

That the State should be under a duty to fulfil its contracts
would hardly be controverted to-day. Whether it should be
responsible for torts committed by officers is a matter on
which opinions differ, Anglo-American law, on the one

RESPONSIBILITT OF THE STATE TOR TORTS 219

hand — up to the present — and French and German law, on
the other hand, adopt different points of view. Non-respon-
sibility of the State for the acts of its judicial agents seems to
be the rule in France as well as in common-law jurisdictions
but it should be recalled that provision is made for com-
pensation to an accused who has been wrongfully convicted
in a criminal trial. Again, the State is under no legal duty
to make compensation for injury caused by legislative en-
actments. There is here, however, a strong doctrinal opinion
in favor of compensation. In addition to the discussion to
be found in the works on administrative law and state re-
sponsibility, the latter subject has been dealt with in a num-
ber of theses of which the more recent are those of Arlet,®*
Brulle,«5 Despax,«« Giraud,»^ and Le Koux.««

It is in the field of administrative responsibility for torts Administra-
that the modern French doctrine has been developed. Origi- *iveRe-
nally in France, as elsewhere, the underlying theory was that ^ ^
" the king can do no wrong." Subsequently even with sov-
ereignty shifting from a prince to the people there was at
first no thought of state liability. But during the course of
the last century a number of civilists took the position that
the State could be assimilated to an ordinary corporate mas-
ter with a resulting application of the provisions of the
Code (arts. 1382 and 1384). The idea was acceptable to
the Court of Cassation, but in the meanwhile the Council
of State was developing a doctrine to the effect that state re-
sponsibility is independent of the provisions of the Code,
falling within the scope of public law. The conflict was de-
cided by the Tribunal of Conflicts in favor of the Council of
State with the result that administrative courts alone have

**Arlet, L. De la responsabiUt^ de I'^tat legislateur. Sarlat,
Michelet, 1914. 179 p.

'* Brulle, R. De la responsabilit^ de l':i&tat k raison des actes l^gis-
latifs. Bordeaux, Y. Cadoret, 1914. 106 p.

'^ Despax, R. De la responsabilit^ de Tlfitat'en mati^re d'actes 16gis-
latifs et r^glementaires. Paris, Giard et Bri^re, 1909. 146 p.

^^ Giraud, E. De la responsabilit^ de r:6tat a raison des dommages
naissant de la loi. Paris, Giard & Briere, 1917. 360 p.

'*Le Roux, P. Essai sur la notion de la responsabilit^ de Tilfitat
cons!d6r6 comme puissance publique et notamment dans F^xercise du
pouvoir l^gislatif. Paris, Pichon et Durand-Auzias, 1909. 120 p.
49926°-~31 15

220 GtJIDE TO THE LAW OF FRANCE

jurisdiction and state responsibility is independent of the
civil law. (The ordinary courts were left with jurisdiction
only when the State acts in gestion privee^ as a private cor-
poration might. They also have jurisdiction of suits against
officials guilty of personal fault.) Subsequently, after 1908,
the administrative doctrines were applied to the responsibil-
ity of subdivisions of the State and local governmental bodies.

The evolution of administrative theories of responsibility,
based on public law conceptions, need not be discussed here.
Accounts may be found in an article by Professor Borchard
(28 Columbia Law Review 737) and in chapter 10 of Wat-
kins' The State m a party litigant.^^ An interesting phase
of the evolution has been the diminishing importance of the
distinction formerly made between " governmental " acts
{jndssance puhlique) and acts arising out of the public
service {de gestion)^ with a corresponding extension of state
responsibility in France, further than in any other country.

Governmental responsibility has been the subject of an
extensive literature. The fundamental works include the
texts on administrative law by Professors Berthelemy and
Hauriou, already referred to, and the third volume of Pro-
fessor Duguit's treatise on constitutional law. Professor
Duguit gives a valuable bibliography not only of the prin-
cipal texts but also of articles pertaining to various prob-
lems arising out of state responsibility which have appeared
from time to time in the Revue du droit public. Valuable
discussions may also be found in Professor Jeze's PHncipes
generaux^ in Laferriere's JuHdiction adndnistrative and in
Professor Appleton's Contentieux administratif ^ all of
which have been mentioned. The last gives extensive refer-
ences to the decisions of the Council of State.

Of the works devoted solely to state responsibility the
most important are Teissier's La responsahilite de Vfltat^^
which is a reprint of an essay contained in the Repertoire de
droit ojdmimstralif ^ and a recent text by Professor Duez, La

** Watkins, R. D. The State as a party Utigant Baltimore, Johns
Hopkins press, 1927. 212 p.

"* Teissier, G. La responsabiUt^ de la puissance publique. Paris,
Dupont, 1906. 301 p.

SOVEREIGNTY — THE PERSONALITY OF THE STATE 221

responsabilite de la puissance jmhlique.^^ Masteau's recent
La responsabilite de VEtat ^^ also deserves mention. On the
theory of responsibility, Marcq's La responsabilite de Vtltat^^
merits an important place. A large number of theses are
cited by Professor Duguit at page 477 of the third volume
of his treatise on constitutional law. It is interesting to note
that in his reference to the two outstanding Belgian works
by Bourquih^* and Wodon,^^ Professor Duguit calls at-
tention to the fact that the accepted French doctrines have
not yet been developed in Belgium.

The various sources which have just been referred to are OosbactB
devoted primarily to the noncontractual responsibility of
the State. There is but little material on contractual re-
sponsibility. Although now somewhat old, an important
work is Perriquet's Les contrails de VEtoit,^ Some discussion
of state debts and contracts may also be found in volume
three of Professor Duguit's treatise on constitutional law.
In addition, reference should be made to a recent work by
Professor Jeze.^^

SOVEREIGNTY— THE PERSONALITY OF THE

STATE

In the introduction to his recent work on governmental
responsibility, Professor Duez, after stating that the

®*Duez, P. La responsabiUt^ de la puissance publique (en dehors
du contrat). Paris, DaUoz, 1927. 210 p.

"^Masteau, J. La responsabilite de Vtltat. Paris, Recueil Sirey,
1927. 282 p.

^^ Marcq, R. La responsabilite de la puissance publique. Bruxelles,
Larcier ; Paris, Larose et Tenin, 1911. 443 p.

^ Bourquin, M. La protection des droits individuels contre les *
abus de pouvoir de I'autorite administrative en Belgique. Bruxelles,
Bruylant, 1912. 398 p.

^^Wodon, L. Le controle juridictionnel de I'administration et la
responsabilite des services publics en Belgique. Paris, Rivifere;
Bruxelles, Lamertin, 1920. 270 p.

^® Perriquet, E. Les contrats de I'Jfitat et travaux publics. Tome 1,
Contrats de riBtat. 2. ed. Paris, Marchal et Billard, 1890. 3 p. 1.,
[v]-xii, 692, 153 p.

" jeze, G. Les contrats administratifs de I'Sltat, des d§partements,
des communes et des etablissements publics. Paris, Giard, 1927.
256 p.

222 €UIDE TO THE LAW OF FRANCE

modern French theory of state liability is the " daughter of
the triumph of the interventionist doctrine," takes the posi-
tion that it is not only incompatible with imperialistic and
metaphysical notions of the State as conceived by the French
revolutionary movement of the end of the eighteenth cen-
tury, but fits in perfectly with the realistic conception of
the State as a vast enterprise set up to satisfy certain general
needs. At the head of this enterprise are tho^ who govern
and their agents. The former are the directive forces and
the latter assure the daily functioning of the details of the
public services created to satisfy these general needs. The
learned writer thus connects state liability with political
philosophy.

One would naturally expect a country like Finance which
has gone through so many political upheavals during the
past century and a half to supply various and conflicting
theories of the nature of the State. It is not surprising there-
fore to find present-day writers on public law in the country
of Bossuet, Montesquieu, Eousseau, Constant, and Auguste
Comte devoting considerable attention to the nature of the
State, its personality, sovereignty, and the theory of sepa-
ration of powers. As already indicated the opposing views
on governmental theories are best presented in the works
of Professor's Duguit and Esmein and Nezard. A complete
picture of Professor Duguit's views can best be obtained
from his works as a whole, but they are also exposed in
his treatise on constitutional law, the first three volumes of
which are based on his earlier works, already referred to.
First developed in his VEtat^ le droit ohjectif et Im loi posi-
tive in 1901, his views on personality and state sovereignty
might be summed up in the following quotation from the in-
troduction to his book, Les trans formations du droit public^
with which he concludes his article on the Law and the State
in 31 Harvard Law Review :

The win of those who govern has no force as such; it has value
and force only to the extent that it makes for the organization and
the functioning of a pubUc service. Thus, the notion of public
service comes to rep^lace that of sovereignty. The State is no longer
a sovereign power which commands ; it is a group of individuals
having in their control forces which they must employ to create
and manage public service. The notion of public service becomes,
therefore, the fundamental notion of modern public law.

EMINENT DOMAIN — ^PUBLIC WORKS 223

Professor Duguit also discusses his concept of public serv-
ice in an article in the Yale Law Journal (v. 32, p. 425).

It would, of course, be a gross exaggeration to pretend
that Professor Duguit's sociological solidarist doctrines rep-
resent the predominant note in French thought in public
law. The classical view is that expressed in the opening
phrases of the Elements de droit constitwtiori/nel of Profes-
sors Esmein and Nezard ;

The state is the juristic personification of the nation; it is the
source of public authority. That which constitutes a nation ia the
existence of an authority superior to individual wills.

In addition to the discussion in works on public law in
general and in those on constitutional law, the theory of the
state received extensive discussion by Professor Carre de
Malberg, of the University of Strasbourg, in his CoTdribvh
tion a la theorie generate de VEtat^^ State personality and
sovereignty are also dealt with in the outstanding French
work on legal personality, La personnxdite moroUe^^ by
Professor Michoud, of the Law faculty of the University
of Grenoble, which was recently revised by Dr. Trotobas.
It should be recalled that the important works on legal
personality were discussed in the chapter on civil law.
Mention of the fact that the theory of the State is also dis-
cussed in a recent work by Combothecra has already been
made.^^^

EMINENT DOMAIN— PUBLIC WOEKS

Eminent domain {expropriation) is governed by an act
of May 3, 1841, as amended, principally in 1918 and 1921.
Its history is dealt with in Des Cilleuls' Origines et devel-
oppement du regime des travaux pvhlics?- Under the ancien
regime the process was virtual confiscation followed by a

^^ Carre de Malberg, R. Contribution ^ la theorie g^n^ale de
TEtat, sp^eialement d'aprds les donnees foumies par le droit consti-
tutionnel frangais. Reprint. Paris, Recueil Sirey, 1920-22. 2 v.

"Michoud, L. La theorie de la personnalit^ morale et son appli-
cation au droit frangais. 2. M. Paris, Librairie g^n^rale de droit
et de jurisprudence, 1924. 2 v. Hee Civil code, page 86.

•*' ;Sfee page 205, note 42.

^ Des Cilleuls, A. Origines et d^veloppement du regime des travaux
publics en France. Paris, Imprimerie nationale ; Pichon, 1895. 305 p.

224 GUIDE TO THE LAW OF FRANCE

problematical indemnity. As early as 1791 the modern
principle that private property may only be taken for a
public use under compensation was incorporated in the Con-
stitution of September 3 of that year. It was subsequently
reproduced in the Civil code (art. 545). But the modern
system of indemnity was not in reality established until the
enactment of a law of July 7, 1833, which has since been re-
placed by the legislation already mentioned.

Procedure or condemnation proceedings aside, the prin-
cipal questions arising with respect to the exercise of the
power of eminent domain in France are three: Who may
exercise the power; what may be taken; and for what pur-
poses may it be exercised. Those who may exercise the
power are essentially of the same classes as those who may
exercise it in the United States. On principle, it can not
be exercised in behalf of private enterprises, whatever their
importance or purpose. There are, however, two important
exceptions, namely, taking property for the use of canals
and railways destined for the exploitation of mines and the
taking of land necessary for the exploitation of water power
under state concession. The property which may be taken,
seemingly, includes only corporeal immovables. Movables
may only be requisitioned for military purposes. The pur-
poses for which the power may be exercised can not be
summed up in a sentence. They are often enumerated in
positive legislative enactments. On principle, the adminis-
trative authorities may declare a particular purpose to be
public. While their finding as to the utility of the exercise
of the power may be final, the question as to whether its
exercise is for an authorized purpose is subject to adminis-
trative review on a contention that the administrative find-
ing is either in violation of positive law or is a misuse of
administrative power. Condemnation proceedings, however,
are judicial.

The substantive law and procedure with respect to emi-
nent domain are summarized in the treatises on administra-
tive law by Professors Hauriou and Berthelemy. The gen-
eral subject also received attention from Professor Duguit
in the third volume of his work on constitutional law. In
addition, valuable essays are contained in Bequet's Refer-

RAILROADS — TRANSPORTATION 225

toire administrative and the encyclopedias published by
Dalloz and Sirey. Most of the works dealing separately
with the subject are old. The more important of these are
Cr'epon's Code annote^ published in a second edition in 1899
and annotated to the law of 1841 and legislation down to
1899; and TraUte de Vexpro\priation^ by Delalleau, Jousse-
lin, and Perin. The works of Bauny de Recy ^ and Daffry
de la Monnoye,^ though often referred to are too old
to be of practical value. The latest texts devoted to eminent
domain alone seem to be a small encyclopedia published
by the Recueil Sirey ^ and a recent work by P. CouzinetJ

Attention should be called to the fact that expropri-
ation is usually discussed in connection with public works
{tra/vaux publics)^ a term applied to construction executed
by the State, or by an administrative body, for a public
purpose.

RAILROADS— TRANSPORTATION

An excellent discussion of the relation of the State to
railways in France may be found in Professor Berthelemy's
treatise (p. 755). The French system is in a sense a com-
bination of or compromise between private and public own-
ership, the historical background of which is too compli-
cated to set forth here. The principal general works on
railways are Picard's Traite des chemins de fer^ and a

^Cr^pon, T. Code annote de rexpropriation pour cause d'utiUte
publique. 2. 6d. Paris, ChevaUer-Marescq ; Plon, 1899. 230 p.

^DelaUeau et Jousselin. Traits de rexpropriation pour cause
d'utiUt^ publique. 8. M. par Perin. Paris, Marchal et BiUard, 1892-
93. 2 V.

* Bauny de R^cy, R. Th^orie de rexpropriation pour cause d'utiUt§
publique. Paris, Durand et Pedone-Lauriel, 1871. 251 p.

^Daffry de la Monnoye, L. Th^orie et pratique de rexpropriation
pour cause d'utilit^ publique. 2. ^. Paris, Pedone-Lauriel, 1879.
2 V.

*Carpentier, E. Petit repertoire de rexpropriation pour cause
d'utilit^ publique. Paris, Recueil Sirey, 1927. 203 p.

^Couzinet, P. La reparation des atteintes port^es ^ la propriety
priv^e immobilidre par les groupements administratifs. Paris, Sirey,
1928. 340 p.

^Picard, A. Traits des chemins de fer; ^conomie politique, com-
merce, finances, administration, droit. :6tudes compar^es sur les
chemins de fer strangers. Paris, Rotschild, 1887. 4 v. Index
general. Paris, Rotschild, 1887. 98 p.

226 GUIDE TO THE LAW OP FRANCE

similar and somewhat later treatise by Carpentier and
Maury.® Both works, however, because of their age fail to
take into account important latter-day legislation, which
seems to be best summarized by Professor Berthelemy, who
also gives a summary account of the regulations concern-
ing maritime and river transportation, aeronautics, and the
postal service. Professor Berthelemy also devotes some
space to roads {voirie) with short bibliographic references
(p. 513 et seq.).

PUBLIC EDUCATION

Valuable summaries of such subjects as education, public
hygiene, pensions, and public aid to the indigent appear in
Professor Berthelemy's treatise.

The discussion under the first heading includes the ad-
ministrative organization of education, compulsory school
attendance, and the legal organization of primary, second-
ary, and university instruction. The legislation with respect
to public and private instruction was also dealt with in
Gobron's Legislation et juHsprvdence de Venseigne9nent^^^
published in a third edition in 1911. In addition, the his-
tory of the relation between the state and education, as well
as its present regulation, is discussed by Professor Duguit
in the fifth volume of his treatise.

Health and safety regulations of industries and buildings
are dealt with in the Traite general ^^ by L. and A. Magistry.
Some discussion of public hygiene, pensions, and aid to the
indigent may also be found in Professor Hauriou's Precis.
Both Professors Berthelemy and Hauriou give short
bibliographies.

'Carpentier, A., et Maury, G. Traite pratique des chemins de fer.
Paris, Larose et Tenin, 1^4. 3 v. Supplement. 1913. 314 p. The
four volumes are reprints from the Repertoire general du droit
fran^ais.

*® Gobron, L. L^^slation et jurisprudence de Tenseignement pubUc
et de I'enseignement priv6 en France et en Algerie. 3. M. Paris,
Larose & Tenin, 1911. 612 p.

^Magistry, L. et A. Traite general sur Tapplication de la
nouvelle legislation des etablissements classes. Paris, Godde, 1923.
712 p.

CHUKCH AND STATE 227

CHURCH AND STATE

Eeligious liberty and the relation of the church to the
state receive treatment in the various texts on administrative
and constitutional law. An extensive discussion may be
found in the fifth volume of Professor Duguit's treatise on
constitutional law. Among the other works which may be
consulted with profit are Professor Esmein's treatise on
constitutional law and the texts on administrative law by
Professors Berthelemy and Hauriou, as well as the latter's
Principes de droit public. Professor Hauriou ^^ was also
the author of a separate publication, which was published in
1906 as a reprint of a part of an earlier edition of his work
on administrative law. The literature on the relation of the
church to the state is exceedingly abundant, but most of it is
written from an individualist biased point of view, par-
ticularly with respect to the legislation of 1905 and 1907
providing for the separation of church and state. For that
reason it is extremely difficult to estimate its value.

A good, comparatively recent work giving the practical
effect of the legislation of 1905 and 1907 is Bureau's Quime
annees de separation}^ Other works include Abbe Crouzil's
Trcdte de la police du cvlte^^ De Mouy's Nouvelle legis-
lation des cultes ^^ covering the legislation of 1905 and 1907,
Le regime des cvHtes^^ by Reville and Armbruster and La
separation ^'^ by De Lamarzelle and Taudiere. In addition,

*^ Hauriou, M. Principes de la loi du 9 decembre 1905, sur la
separation des §glises et de Tfitat. Paris, Larose et Tenin, 1906.
80 p. (Bxtr. du Precis de Droit administratif . )

"Bureau, P. Quinze ann4es de separation, ifitude sociale doou-
mentaire sur la loi du 9 decembre 1905. Paris, Bloud et Gay, 1921.
248 p.

" Crouzil, L. Traits de la police du culte sous le regime de la s^j?-
aration. Paris, Bloud, 1908.

^Mouy, R. de. Nouvelle legislation des cultes. 1905-1908. ParijS,
Dupont, 1908. 2 p. 1., 360 p.

"R^ville, M., et Armbruster, L. Le regime des cultes. Paris, fier-
ger-Levrault, 1906. 324 p.

" LamarzeUe, G. de et Taudiere, H. La separation de rSglise et de
r:fitat. Paris, Plon-Nourrit, 1906. 462 p.

228 GUIDE TO THE LAW OF FRANCE

there is a three-volume work by Maurice Felix dealing with
the history and legal position of religious congregations.^^''
An extensive bibliography may be found in Professor
Duguit's treatise on constitutional law. A good but not
unbiased analysisi of the acts of 1905 and 1907 was published
in the Political Science Quarterly for 1908 (v. 28, p. 259)
by Professor Guerlac under the title, Separation of church
and State in France.

Prior to 1905 the relations between church and State were
regulated by a law of April 8, 1802, enacted after the con-
clusion of a treaty between the First Consul and Pope Pius
VII designated as the Concordat. Under this law and later
decrees, provision was made for the practice under state
supervision of three different religions, the Koman Catholic,
the Protestant (comprising Calvinists and Lutherans), and
the Jewish. One of the important provisions of this act was
that the clergy acquired the standing of governmental offi-
cials with regular salaries paid by the State. In return the
Church was under the supervision of the Government, which
appointed the bishops and archbishops of the Koman church
with the sanction of the Pope. While the priests were ap-
pointed by the bishops and archbishops, appointments could
only be made after consultation with the Government.

The act of 1905 providing for separation was enacted
after 30 years of acrimonious debate. The provisions of the
new law, while ostensibly looking to freedom of religious
worship and complete separation of the internal government
of religious bodies from the supervision of the State, also
brought religious bodies within partial supervision through
the requirement that religious associations comply with state
organization laws. Although accepted by both Protestant
churches and the Jewish faith, the regime provided for was
rejected by the Catholic hierarchy. Accordingly, the Catho-
lic Church is governed by an act of 1907 which withdrew
most of the privileges still conferred by the law of 1905 and
brought the church under the regulations of the law of asso-
ciations of 1901 and that of 1881 relating to public meetings.
It should be remarked here that Alsace and Lorraine have
not yet been brought within the legislation of 1905 and 1907.

^"'^F^Ux, M. Congregations reiigieuses. Paris, Rousseau, 1908-29.
3 v.

iNDiyiDTTAL RIGHTS — ^FREEDOM 0!P SPEECH 229

INDIVIDUAL KIGHTS^FEEEDOM OF SPEECH

Writers on constitutional law usually consecrate a part
of their works to individual rights — similar to those which
are included under the American bills of rights. Some of
these, such, as religious freedom and education, have just
been referred to. Others include such privileges as that of
engaging in a lawful calling, liberty of contract, freedom of
reunion and association, and freedom of speech. Unlike
the earlier French constitutions, the present fundamental
laws contain none of the dogmatic expressions which usu-
ally appear iii written constitutions, with the result that
theSe rights are wholly governed by statute. Valuable the-
oretical and practical discussipns of these different ^' liber-
ties " appear in the fifth volume of Professor Duguit's
treatise, and some discussion may be found in the second
volume of Professor Esmein's text. Professor Duguit, in
his fifth volume, also devotes some attention to the prohi-
bition and regulation of certain callings, industries, and
commercial yentures. Reference should also be made to
his JSouverainefe et liberte^^ published in 1922 and consist-
ing of lectures delivered at Columbia University in 1919.

Freedom of reunion, association, and speech has passed Freedom
through varying fortunes during the almost a century and a^^^^^
half sincig the first Revolution. Freedom of speech was
first guaranteed in the Constitution of 1791 as pne of the
natural rights of man. Since then the position of the press
in particular has depended largely upon the liberal or re-
actionary nature of the government in power. At present
the law regulating the press, which might be called the
existing charter of its liberty, is that of 1881. Although
entitled "An act concerning the freedom of the press," it
provides for the regulation of other methods of publicity,
such as books and posters. Attention should be called to the
fact that publications in foreign languages are subject to
special regulations.

The legal position of the press is discussed in the treatises
on administrative law as well as those on constitutional
law. In addition, reference may be made to the treatises by

^* Duguit, L. Souverainet§ et liberte. Paris, Alcan, 1922. 208 p.

230 GUIDE TO THE LAW OF FKANCE

Fabreguettes ^^ and Le Poittevin^^ and Barbier's Code ex-
ylique de la fvesse?^

COLONIAL LAW

The administration of the French colonies constitutes a
regime separate and distinct from that of France proper.
The constitutional laws do not apply to the colonies ; a fact
also true of legislative enactments which are not expressly
made applicable. Executive authority is greater than in the
mother country, and the colonies are in the main governed
by a distinct body or bodies of law.

The best work on colonial law is that of Arthur Girault,
Principes de colonisation et de legislation,^'^ Four volumes
of a fifth edition have been published. These comprise the
first, second, fourth, and fifth volumes dealing with French
colonial history, administration and French northern Africa.
Economic questions will be dealt with in the third volume,
said to be in the course of preparation. A much shorter work
is Merignhac's TraiteP Kef erence is also sometimes made to
Dislere's Traite de legislation coloniale^^ published in a 4th
edition in 1914. In addition, attention should be called
to the 3-volume treatise on Algerian legislation by Larcher
and Rectenwald.^® Mention should be made of the fact that
Algiers occupies a position apart. At one time the tendency
was to treat it as a part of France proper, while at present
the tendency seems to be to assimilate it to the colonies.

*' Fabreguettes, P. Traits des d^lits politiques et des icfractioHS
par la parole, I'ecriture et ;ia presse. 2. M. Paris, Clievalier-
Marescq ; Plon, 1901. 2 v.

^ Le Poittevin, G. Traits de la presse. Paris, Larose, 1902-04. 3 v.

^ Barbier, G. Code expiiqu^ de la presse ; traits g#n€ral de la police,
de la presse et des d^Uts de publication. 2. M. Paris, Marehal et
Godde, 1911. 2 v.

^Girault, A. Principes de colonisation et de legislation eoloniale.
5. ^. Paris, Reeueil Sirey, 1927-29. 4 v.

^Merignhae, A. Traits de legislation et d'^conomie coloniales. 2.
ed. Paris, RecueU Sirey, 1925. 887 p.

**Disl^re, P., et Duch^ne, M. Traits de legislation eoloniale. 4.
6d. Paris, Dupont, 1914. 2 v.

'"^ Larcher, B., et Reetenwald, G. Traite eiementaire de legisla-
tion algerienne, 3. ed. Paris, Bousseau, 1923. 3 v.

PUBLIC FINANCE — ^FISCAL LEGISLATION 231

There is also a special compilation of Moroccan laws and
codes. ^^

ALSACE AND LOKRAINE

While Alsace and Lorraine were returned to France as
the result of the armistice and the treaty of Versailles,
their complete reintegration has not yet taken place. Within
the last few years, however, there has been a more rapid
assimilation than during those immediately following their
cession. The present administrative organization is dealt
with summarily in Professor Hauriou's treatise. Due to
their peculiar relation to France the legislation and juris-
prudence of both provinces have been the subject of a special
encyclopedia 2^ published under the direction of Professor
de Niboyet, of the University of Strasbourg.

PUBLIC FINANCE— FISCAL LEGISLATION

Due to the fact that public finance and fiscal legislation
constitute a part of the law school curriculum as provided
for in the decree of August 2, 1922, members of French law
faculties have produced several general works, giving a com-
prehensive survey of the subject, which do not have their
counterpart in our legal literature. The most important are
those of Professors AUix and Jeze, the outstanding authori-
ties in their field and both of the Paris Law School. Pro-
fessor Jeze is the author of a number of texts published
during the past several years under the title Gouts de soieiwe
des finanees,^^ Less theoretical, the Tradte elementodre?^ by

^^ Riviere, P. L. Trait^s, codes et lois du Maroc. Paris, RecueU
Sirey, 1924-25. 4 v. Supplements 1926, 1927, 1928, 1929.

"Niboyet, J. P. Repertoire pratique de droit et de jurisprudence
d'Alsace et de Lorraine. Paris, Recueil Sirey, 1925. 2 v. Supple-
ments. 1925, 1926, 1927, and 1928.

^Prof. G. jeze*s publications under the title Cours de science des
finances, based on his lectures and all published by Giard, Include:
Depenses publiques. Th^orie g^n^rale du credit public. 6. ed. 1922.
507 p. Theorie generale du budget. 1922. 286 p. Theorie generale
de I'emprunt, 1923. 256 p. La technique du credit public. 6. ed. 1923.
224 p. La technique du credit public. Taux de I'interet . . . 6. ed.
1925. 452 p. Another series under the title Cours de finances
publiques comprises: La technique du credit public. L'immunite
fiscale de la dette publique . . . 1923. 224 p. La technique du
credit public. Le remboursement de la dette publique, 1925. 312 p.

232 GUIDE TO THE LAW OF FRANCE

Professor Allix, gives in one volume a comprehensive out-
line of public finance in France. The first part of Profes-
sor AUix's work is devoted to a discussion of the prepara-
tion, adoption, and execution of the budget, the second to
resources of the State, including taxes and loans, and the
third to local budgets and taxes. A fourth part deals with
colonial budgets and taxation, and a fifth gives a summary
notion of the fiscal legislation of Germany, England, and
Italy. Other texts of value but less important, include
Professor Moreau's MamwLel eUmentaire^^^ Professor Moye's
pT^cis elemmdcdre^^'^ and Arthur Girault's Manuel,^'^ Atten-
tion should be called to the fact that Professor Allix's
treatise was published in a fifth edition in 1927 and thus
takes into account taxation imposed as the result of the
more recent financial reforms, a matter which is not always
dealt with in some of the other works mentioned.
Budget j^ France both the Government and Parliament partici-

pate in the preparation of the budget. Each ministry pre-
pares a budget of expenses which is transmitted to the
Ministry of Finance for coordination. The latter alone of
the ministries prepares the budget of receipts. After the
complete preparation of the budget by the Ministry of
Finance, it is submitted to Parliament, where it is first sent
to a committee on finance (in both houses) for a study of
its details. There it is subject to modification and even
revision before being submitted to the legislature for adop-
tion. The outstanding general work on the budget is Pro-
La date de remboursement de la dette publique. Histoire de
Famortissement en France, 1926. 384 p. La date de remboursement
de la dette pubUque. Histoire de Tamortissement en Angleterre,
1927. 261 p.

''^AUix, B. Traits eltoentaire de science des finances et de legis-
lation financidre frangaise. 5. 6d. Paris, Rousseau, 1927. 1,063 p.

***Moreau, F. Manuel ^l^mentaire de legislation et science finan-
ci^res. Paris, de Boccard, 1924. 640 p.

"Moye, M. Precis ei^mentaire de legislation financi^re, k Tusage
des etudiants des Facult^s de droit. 8. M. Paris, Recueil Sirey,
1926. 442 p.

"^ Girault, A. Manuel de legislation financiere. Paris, Recueil Sirey,
1924-27. 3 parts.

PUBLIC FINANCE — ^FISCAL LEGISLATION 233

fessor Stourm's Le hudget^^ translated into English in
1917.«*

The role played by Parliament in the adoption of the
budget is also discussed by Professor Duguit in the fourth
volume of his treatise, as well as in the general treatises
on public finance and fiscal legislation.

The present system of direct taxation in France is of^^^^^**^^"
comparatively recent date, having its origin in the fiscal
reforms which took place between 19M and 1917 and which
were in turn largely based on the proposals made in 1907
by Caillaux, former Minister of Finance. Having as their
basis tax on income, direct taxes are of two species — ^taxes
on income from different categories of sources {impSt
ceduLaire) and a complementary tax on total income {impot
general). The first is divided into eight categories, com-
prising generally two categories of income from land, in-
come from stocks and bonds and capital, income from loans,
industrial and commercial profits, profits from agricultural
ventures, salaries, and income from non-commercial profes-
sions. The methods of evaluating income and collecting
the different taxes are outlined in the Traite elemerdaire
by Professor AUix and several texts devoted specially to
direct taxation.

General summary information concerning direct taxation
is contained in a manual, Notions sommaires des impots,^^
published by the Ministry of Finance. This work is of
particular value. The leading treatise is Vmipot swr le
revmrn^^ published by Professor AUix with the collabora-
tion of Dr. Lecercle. Another important and compre-
hensive work is Bocquet's Vimpot sur le revenu,^'^ A

^ Stourm, R. Cours de finances. Le budget. 7. ^d. Paris, Alcan,
1913. 621 p.

34 Stourm, R. The budget, by Ren6 Stourm ... a translation from
the 7th ed., by Thaddeus Plazinski. New York, Appleton and company,
1917. 619 p.

35 Notions sommaires relatives ^ Tassiette et T^tablissement des
impots sur les revenus. Minist^re des finances. Paris, Imprimerie
nationale, 1926. 64 p.

^'Allix, E. et Lecercle, M. L'impSt sur le revenu, impOts c^du-
laires et imp6t g^n^ral. Paris, Rousseau, 1926. 2 v. Supplement, 1929.

'"Bocquet, L. L'imp6t sur le revenu, cMulaire et g^n^ral. 3. 6d.
Paris, Recueil Sirey, 1926. 1111 p. Suppltoents, 1927-29. 3 v.

234 GUIDE TO THE LAW OF FRANCE

thesis, Le conArole en matiere de contributions direetes^^ by
Champion is often recommended.

Indirect The best work on indirect taxation seems to be that pub-

lished by Profe^or AUix and Dr. Lecercle.^^

Total Sales Qne of the most lucrative and important taxes resulting
from the war is the tax on business turnover {chifre d'^ affaires)
which is imposed on total sales and receipts for services ren-
dered. Those who exercise a liberal profession, agricultural-
ists selling their own products, artists, and agricultural asso-
ciations, are, however, excepted from its operation. This form
of taxation, which was carried in the 1927 budget as probably
producing more than seven and a half billion francs, has been
the subject of a commentary ^° by Professor AUix and Dr.
Lecercle, published in a second edition in 1929.

^^egisra- Another important source of revenue is the tax imposed
on the registration or recordation of written instruments
{enregistrement) , The best recent work^^ is the treatise by
Dublineau, which has been brought down to August 1, 1927,
through the publication of supplements. In this connection
mention should be made of a practical treatise on registra-
tion and stamp taxes ^^ by Vincent, who is also the author of
a very good small practical resume of the fiscal regime of
associations, stocks and bonds, and insurance.^^ Another
valuable work on the fiscal regime of associations is that of
Lefebvre,*^ the first volume of which is devoted to registra-
tion, and the second to taxation.

^Champion, R. Le controle en matiere de contributions directes
en France. Paris, Riviere, 1926. 436 p.

^Allix, E. et Lecercle, M. Les contributions indirectes. 3. ed.
Paris, Rousseau, 1929. 920 p.

*"AlIix, E., et Lecercle, M. La taxe sur le cbiffre d'affaires. Traite
tb€orique et pratique. 2. ed. Paris, Rousseau, 1929. 536 p. Les im-
pots f rangais.

"Dublineau, E. Traite tb6orique et pratique de I'enregistrement.
3. 6d. Paris, Recueil Sirey, 1924. 1,128 p. Supplements 1925, 1927.

*^ Vincent, G. Traite technique et pratique des droits d'enregis-
trement, de timbre et d'bypoth^que. Paris, Riviere, 1927. 516 p.

*' Vincent, G. Le regime fiscal des societes, des valeurs mobili^res
et des assurances. Paris, Juris-classeurs, 1928. 420 p.

"^Lefebvre, R. et J. Les soci^t^s frangaises. Traits fiscal des
soci^t^s anonymes. Paris, Juris-Classeurs, 1928. 2 v.

Corpora-
tions

INDEX

Abus des droits, 97.

Acquired rights, in conflict of laws, 202.

Administrative law, 210-216.

Codes, 213.

Encyclopedias, 212.

Organization, 213.

Reports of decisions, 23, 213.

Treatises, 210.

Tribunals, 214.

See also Responsibility of State for torts,
216-221.
Aerial navigation, 118.
Agents de recherche, 182.
Agnel and de Corny, insurance, 129.
Alauzet, insurance, 129.
Algiers, 230.

Alibert, administrative law, 215.
AUart:

Patents, 134.

Trade marks, 135.
Allix, public finance, 231, 233, 234.
Alsace and Lorraine, 231.
Alvarez, comparative law, 50.
Amiaud, civil procedure, 151.
Analytical jurisprudence, 37.
Annales de droit commercial, 106.
Annales de la propri6t6 industrielle, 132.
Annotated editions. See Civil code, Com-
mercial law, etc., 74.
Annuaire de legislation francaise, 16.
Antonelli, social insurance, 166.
Antwerp rules, 128.
Appellate procedure, 150.
Appleton:

Administrative law, 216.

French Bar, 152.

State responsibility, 220.
Arbitration of labor disputes, 139, 162.
Argles, commercial law, 106.
Arminjon:

Private international law, 192.

Theory of qualifications, 201.
Arthuys, partnerships and corporations. 111.
Association en participation, 108.
Associations, 107.
At6iiers sociaux, 154.
Attempts, 177.
Aubry and Rau:

CivU law, 79, 82.

Legal philosophy, 38.
Aucoc, administrative law, 212.
Audinet:

Nationality, 195.

Private international law, 192.
Augier et Le Poittevin, military law, 188.
Autran, maritime commerce, 125.
Average, general, 127.
Avocat, 151.
Avou6, 151.
Bankruptcy, 129-131.
Banqueroute, 130.
Bar, 151.

Barbier, press, 230.
Barreau, 151.
Barth61emy:

Constitutional law, 209.

Public law, 204.
Bartin:

Judgments, 202.

Renvoi, 201.

Theory of qualifications, 200.

49926°— 31-

-16

Basdevant, legal history, 67.
Batbie, administrative law, 212.
Bate, renvoi, 202.

Baudry-Lacantinerie, civil law, 81-82, 83.
Beauchet, extradition, 189.
Beaune, legal history, 66.
Beaussire, legal philosophy, 35.
B6darride, commercial law, 103.
Belime, legal philosophy, 34.
Bentham, legal philosophy, 38.
B6quet, administrative law, 212.
Berriat, Saint- Prix, civil procedure, 145.
Berth61emy, administrative law, 210.
Bertin, criminal law, 178.
Beudant:

Civil law, 83.

Legal philosophy, 35.
B6zard-Falgas:

Commercial law. Exchanges, 116.

Transfer of stock, 117.
Bibliography, 7-12.

Catalogues-
Libraries, 13.
Publishers, 11.

General, including non-legal, 11.

Insurance, 129.

Literary and industrial property, 131.

Modern, 7-12.

Periodical sources, 10.

Roman law, 10.
Bills and notes. See Negotiable paper, 11&-

Blanc, Louis, 154, 155.
Blanche:

Administrative law, 212.

Criminal law, 175.
Bloch and Chaumel, labor disputes, pnid

'hommes, 162.
Block, administrative law, 212.
Bocquet:

Collection complete des lois, 16-

Taxation, 233.
Boistel:

Commercial law, 106.

Legal philosophy, 34.
Boitard:

Civil prodecure, 145.

Criminal law, 175.
Boncenne, civil procedure, 145.
Bonfils, jurisdiction and conflict of laws, 203.
Bonnard:

Administrative law, 211.

Public law, 204.
Bonnecase:

Baudry-Lacantinerie, 82.

Civil code, 77.

Legal philosophy, 48.

Maritime commerce, 123.
Bonnier, proof, 149.
B orchard:

Bibliography, 8.

Commercial law, 107.

Criminal justice, 187.

Responsibility of State, 220.
Bordeaux, civil procedure, 144.
Bougl6, legal philosophy, 42.
Bouhier, conflict of laws, 199.
Boullenois, conflict of laws, 199.
Bourgeois, legal philosophy, 42.
Bourquin, State responsibility, 221.
Boutaud, fonds de commerce, 117.

235

236

INDEX

Bouteron, checks, 120.

Bovier-Lapierre, labor and social legislation,

159.
Bravard-VejTieres, commercial law, 106.
Brethe, labor contract, 161.
Brevets d' inventions, 134.
Breviary of Alaric, 55.
Brissaud, legal history, 64.
Brun, legal philosophy, 35.
Brunet, transportation, 119.
Bry:

Labor and social legislation, 159.

Literary and industrial property, 132.

Roman law, 53.
Buchere, exchanges, 116.
Budget, 232.
Bufnoir, obligations, 94.
Bulletin des arrets de la Cour de cassation, 19.
Bulletin des lois, 15.
Burgundian code, 55.

Business associations. See Partnerships, As-
sociations, and Corporations, 107-115.
Cabouat, workmen's compensation, 164.
Cachard, Civil code, 75.
Cambac6res, codification, 69.
Camus and Dupin, 8, 153.
Capitant:

Bibliography, 11.

Causa, 95.

Civil code, 83.

Legal philosophy, 38.

Persons, 88.

Philosophy of law, 38.

See also Colin and Capitant, 83.
Capitant and Cuche, labor legislation, 158.
Capitularies, 66.
Carpentier:

Administrative code, 213.

Civil code, 75.

Code of civil procedure, 143.

Code of criminal procedure, 174.

Codes and laws, 17, 18.

Commercial code, 101.

Criminal procedure, 183.

Divorce, 93.

Penal code, 174.
Carr6, civil procedure, 145.
Carriers, 126.

See also Transportation, 118-129.
Case method, 31.
easier judiciaire, 179.
Cassation, Court of, 139.
Causa, 95.

Cauvet, insurance, 127.
Cendrier, fonds de commerce, 118.
C6zar Bru:

Execution, 150.

Garsonnet and C6zar-Bru, Civil proce-
dure, 146.
Chambre des Requites, 140.
Charmont:

Evolution of civil law, 76.

Legal philosophy, 46, 47.
Charter parties, 126.
Chauveau:

Civil procedure, 146.

Criminal law, 175.
Checks, 119-121.
Chenon, legal history, 65.
Chiffre d'affaires, 234.
Child labor, 161.
Church and state, 227.
Civil code, 71-99.

Annotated editions, 74.

Breach of contract to marry, 91.

Causa, 95.

Commentaries, Treatises, 77-83.

Contents, 71.

Development of civil law, 75.

Divisions of Code, particular subjects, 85.

Divorce, 92-93.

Doctrinal treatment, 77.

Civil code— Continued.

Elementary treatises, 83.

Marital property, 88-91.

Marriage, 88.

Marriage contract, 88-91.

Obligations, 94.

OflBcial editions, 74.

Official name, 73.

Periodicals, 84.

Persons, Legal personality, 85-88.

Pocket editions, 74.

Property, 98.

Qualities and defects, 73.

Sources, 72.

Succession, 99.

Torts, 9&-98.

Translations, 75.

Treatises, 77-83.
Civil code and Commercial associations, 111.
Civil code and Commercial law, 102.
Civil code and Labor, 154.
Civil procedure, 137-153.

Appellate procedure, 150.

Court of cassation, 139.

Evidence, 148.

Execution, 150.

General literature, 144.

Judicial organization, 138.
Court of cassation, 139.
General literature, 141.
Inferior courts, 139.
Reform, 141.

Jurisdiction, 147.

Actions by and against foreigners, 148.
Waiver, 148.

Legal profession, 151.

Procedure, 142.

Adoption of Code, 142.
Annotated editions, 143.
Encyclopedias, 147.
Form books, 146.
History, 67, 142.
Civil responsibility, 97.

See generally Torts, 96-98.
Clunet, 192.
Coalitions, 153.

Code civil. See Civil code, 71.
Code d'instruction publique, Criminal pro-
cedure, 180.
Code de la marine, 60.
Code Louis, 59.
Code Marchand, 60.
Code Napoleon. See Civil code, 71.
Code Savary, 59.

Codes and Laws. See Legislation, 14.
Codes d'audience, 18.
Codification, History of, 68-71.

Civil code, 69.

Civil procedure and other Codes, 69.

Compilations of proceedings, 70.

Efforts of revolutionary regime, 69.
Cohendy and Darras, Comihercial code, 101.
Colin, Codes and laws, 17.)
Colin and Capitant, Civil code, 83.
Collard, criminal law, 178.
Collection complete des lois, 16.
Collection des ordonnances du Louvre, 60.
Collection g6n6rale des lois, 15.
Collection Thaller, commercial law, 105.
Collections of royal legislation, 60.
Collective labor contract, 160.
Collinet, legal history, Roman law, 53.
Collisions, 124.

Colmet-Daage, civil procedure, 145.
Colmet de Santerre, Civil code, 81.
Colonial law, 230.
Combothecra:

Public law, 205.

Sovereignty, 223.
Comite de Defense des enfants, 180.
Commentaries. See Treatises under respec-
tive subject e. g., Civil law.

INDEX

237

Commercial and maritime legislation during

the reign of Louis XIV, 69.
Commercial associations. See Partnerships,
Associations and Corporations, 107-115;
Commercial law, 9&-131.
Commercial courts, 139.
Commercial law, 99-131.
Associations, 107.

See also Partnerships and Corpora-
tions, 107-115.
Bankruptcy, 129-131.
Civil code and Commercial law, 102.
Commentaries and treatises, 102-107.
Commercial code, 99-102.
Adoption, 100.
Contents, 100.
English translations, 101.
Private editions, 101.
Corporations, 108.
Exchanges, 116.
Fonds de commerce, 117.
Insurance, 127-129.
Maritime commerce, 121-129.
Average, 127.
Charter parties, 126.
Collisions, 124.
General literature, 122.
Insurance, 127.
Liens, 124.

Limitation of liability, 125.
Transportation and carrier's respon-
sibility, 123.
Negotiable paper, 119-121.
Partnerships, Associations and Corpora-
tions, 107-115.
Associations, 107.
Commercial partnerships, 108.
CoopOTativee, 112.
Corporations, 109.
De facto corporations, 112.
Foreign corporations, 113.
General literature, 110.
Legislation, Limited partnerships

and Corporations, 108-109.
Limited partnerships, 108.
Nationality of corporations, 114.
Periodicals; 115.
Private corporations, 112.
Transfer of shares of stock, 116.
Transportation, 118-119.
Commercial partnerships, 108.
Committing magistrates, 182, 185.
Community property, 90.
Companies, 109.
Comparative law, 60.
Comte, 39.
Concordat, 228.
Concurrence d61oyale, 136.
Conflict of laws, 198.

See also in general. Private international
law, 189-203.
Conseil d'Etat, 214.
Conseils de prud'hommes, 139, 154.
Constitutional law, 206-209.
Constitution of 1875, 206.
Texts of Constitutions, 207.
Treatises, 207-209.
Continental legal history series, 2, 68.
Contracts:

See also Obligations, 94-98.
State responsibility, 221,
Contrat du travail, 160.
Cooperatives, 112.
Copinger, copyright, 132.
Copper-Royer, corporations. 111.
Copyright, 132.
Corporations, 108, 109.
Coulon, divorce, 93.
Council of State, 214.
Cour de cassation, 139.
Courcelle-Senueil, legal philosophy, 40.
Effect of decisions, 19.

Courcy, maritime commerce, 122.
Court control of administrative acts, 215.
Court of assize, trial, 184.
Court of cassation, 139.
Court reports, 18-23.

Administrative decisions, 23, 213.

Authority of judicial decisions, 19.

Commercial decisions, 22.

Court of cassation, 19.

Doctrine and jurisprudence, 18.

Method of reporting, 21.

Official reports of the Court of cassatk)!!.
19.

Private reports, 20.
Courts. See Civil procedure, 137-153, and

Judicial organization, 138-141.
Coutumiers:

Modern editions, 58.

Regional customs, 57.
Cr6pin, labor contract, 160.
Cr6pon:

Court of cassation, 140.

Execution, 151.
Criminal law, 167-180.

Attempts, 177.

easier judiciaire, 179.

Evolution of criminal law, 167.

Extenuating circumstances, 178.

Habitual criminals, 179.

Juvenile delinquency, 180.

Penal code, 168.

Annotated editions, 174.
Contents, 173.
Criticisms, 169.

Philosophical thought. Penology, 168-173.

Treatises, 174.
Criminal procedure, 180-189.

Code of, 181-182.
Adoption, 181.
Annotated editions, 182.
Contents, 181.

History, 67.

Jurisdiction, 185.

Partie civile, 186.

Treatises, 183.

Under the revolutionary regime, 181.
Criminology, 168-172.
Cuche:

Civil procedure, 146.

Criminal law, 171.

Execution, 150.

Legal philosophy, 48.
Cujas, 62.

Cuq, Roman law, 53.
Daily legal journals, 22.
Dalloz:

Administrative code, 213,

Civil code, 74, 75.

Code des accidents, 164.

Code of civil procedure, 143,

Commercial code, 101.

Court reports, 20.

Criminal procedure, 182.

Dictionaries, 25.

Encyclopedias, 24.

Labor code, 158.

Legislation, 16, 17.

Penal code, 174.

Student texts, 31.
Damages in criminal prosecution, 186,
Danjon, maritime commerce, 122.
D'Argentr6, conflict of laws, 198.
Darras, 192.

Davy, legal philosophy, 49.
Days of rest, 161.
Declareuil, legal history, 63.
D6confiture, 130.
Decugis, commercial law, 111.
De facto corporations, 112,
Defr6nois, notary, 151.
Degois, criminal law, 176.

238

INDEX

Delamarre and Le Poitevin, Commercial

law, 103.
De Lapradelle. See Lapradelle, 192, 209.
Demante, Civil code, 81.
Demogue:

Legal philosophy, 45.

Obligations, 94, 97.

Private international law, 192.

Torts, 97.
Demolombe, Civil code, 80.
Depinay, dotal regime, 91.
Des Cilleuls, public works, 223.
Designs and models, 135,
Desiry, commercial associations, 111.
Desjardins, maritime commerce, 122.
Despagnet, private international law, 191.
D6tournement de pouvoir, 214.
Devin, immovables and conflict of laws, 202.
Dicey:

Administrative law, 210.

Eenvoi, 201.
Dictionaries, 23, 25.
Dictionnaire de procedure civile, 147.
Direct taxes, 233.
Dislere, colonial law, 230.
Divorce, 92-93.

Doctrine and jurisprudence, 18.
Domat, legal history, 61.
Donnedieu de Vabres:

Conflict of laws, 200.

Criminal jurisdiction, 185.
Dotal regime, 90, 91.
Dramard, bibliography, 9.
Droit administratif, 210.
Droit de pr61evement, 195.
Drouets:

Checks, 121.

Private companies, 112.
Droz, insurance, 129.
Ducrocq, administrative law, 212.
Duez:

Constitutional law, 2G9.

Sovereignty, 221.

State responsibility, 220.
Dufour:

Administrative law, 212.

Maritime commerce, 122.
Duguit:

Constitutional law, 207, 209.

Evolution of civil law after codification,
76.

Evolution of public law, 205.

Individual rights, 229.

Legal phflosophy, 43, 44, 45, 47.

Sovereignty, 222.

State responsibility,[221.
Duguit and Monnier, constitutional law, 207.
Dumoulin, conflict of laws, 198.
Dupin. See Camus and Dupin, 8, 153.
Duranton, Civil code, treatises, 78.
Durkheim, legal philosophy, 41.
Duverdy, transportation, 119.
Duvergier:

Civil code, 78.

Collection complete des lois, 16.
Ehrhardt, legal philosophy, 47.
Eminent domain, 223-225.
Encyclopedias, 23.

Administrative law, 212.
Enregistrement, 234.
Errors of criminal justice, 187.
Esmein:

Constitutional law, 207.

Criminal procedure, 181.
, Legal history, 63, 66, 70.
Etudes criminologiques, 172.
Evidence, 148.
Exces de pouvoir, 214.
Exchanges, 116.
Execution, 150.
Exemption of carrier, 126.
Expropriation, 223.

Extenuating circumstances, 178.
Extradition, 188-189.
Eynard, law of the flag, 128.
Eyquem, dotal r6gime, 91.
Fabreguettes, freedom of speech, 230.
Fafllite, 130.

Fairweather, patents, 134.
Faustin-H61ie:

Criminal law, 175.

Criminal procedure, 183.
Faye, Court of cassation, 140.
Fenet, legal history, codification, 70.
Ferri criminal law, 170.
Fiscal legislation, 231-235.
Flag, law of, 128.

Foelix, private international law, 191.
Fonds de commerce, 117.
Fontaine, employment bureaus, 161i
Foreign corporations, 113.
Foreign judgments, 203.
Foreigners in France, 195-198.
Forgo case, conflict of laws, 201.
Form books, procedure, 146.
FouiU6e, legal philosophy, 35.
Franck, legal philosophy, 34.
Freedom of speech, 229.
French bar, 151.
Froland, conflict of laws, 198.
Fuzier-Herman:

Civil code, 74.

Encyclopedia, 23.
Garcon:

Criminal law, 171,

Penal code, 174,
Garner:

Administrative acts, 215.

Administrative law, 210.
Garraud, criminal law, 171, 173, 175, 176.
Garsonnet, and C6zar-Bru, civil procedure,

146.
Gautier, bibliography, 11,
Gazette des tribunaux, 22.
Gazette du palais, 22.
General average, 127.

German civil law, works on by Saleilles, 99.
Germanic laws and codes, 55.
Gide, legal philosophy, 42.
Girard, Roman law, 62-63.
Girault, colonial law, 230,
Glasson, legal history, 65. "*

Glass on and Tissier, civil procedure, 145.
Goirand:

Commercial law, 106.

Foreign corporations, 114,

Judicial organization, 141,
Gombeaux, fonds de commerce, 117.
Goodnow, administrative law, 210,
Grandin, 7.

Grente, copyright, 133.
Griveau, dotal r6gime, 91.
Growth of civil law after codification, 75.
Gu6rin, maritime commerce, 123.
Guillouard, Civil code, treatises, 80.
Guizot, criminal law, 169.
Habitual criminals, 179.
Hauriou:

Administrative decisions, 213.

Administrative law, 210, 211.

Constitutional law, 209.

Public law, 205.
Health and safety regulations, 226.
H^mard, insurance, 128, 129.
Historical school, 37.
History. See Legal history, 61-71.
Houpin and Bosvieux, partnerships and cor-
porations, 110.
Hours of labor, 161.
Huard:

Copyright, 133.

Patents, 134.
Hue, Civil code, 83.
Huvelin, Roman law, 54.

INDEX

239

Hypothecation of ships, 124.
Indictment, 185.
Indirect taxes, 234.
Individual rights, 229.

Industrial property. See Literary and in-
dustrial property, 131-137.
Influence of French law in America, 1-2.
Inland navigation, 118.
Institut de criminologie, 172.
Insurance, 127-129.
International penal law, 185.
International protection of copyright and pat-
ents, 137.
International transportation, 119.
Issue and negotiation of foreign securities, 114.
Japiot, civil procedure, 146.
Jeze:

Administrative law, 211.
Public finance, 231.
Eesponsibility of State, 220.
State responsibility, contracts, 221.
Joly, criminal law, 172.
Josserand:

Civil law, 83.
Execution, 150.
Torts, 97.

Transportation, 118.
JoufEroy;

Criminal law, 169.
Legal philosophy, 34.
Journal du droit international, 192.
Journal du Palais, 21.
Journal officiel, 15.
Judicial decisions, 18.
Judicial organization, 138-142.
Judicial police, 182.

Judiciary. See Judicial organization, 138-142.
Juge d' instruction, 182, 185.
Juris-classeurs, 24.
Jurisconsults, 60.
Jurisdiction in general, 147-148.

Controversies between foreigners, 202.
Jurisprudence:

See Philosophy of law, 32.

Doctrine and jurisprudence, 18.
Juristic persons. See Persons, Legal person-
ality, 85.
Justices of the peace, 139.
Justinian, Roman law, 53.
Juvenile delinquency, 180.
Kelly, marriage, 88.
Klinurath, legal history, 66.
Kohler, patents, 134.
Labor and social legislation, 153-162.

Compilations of labor and social laws, 158.

Employment bureaus, 161.

Evolution of, 153.

General literature, 158.

Labor contracts, 159.

Labor disputes, 162.

Minimum wages, 161.

Protection of labor, maximum hours,

child labor, safety, etc., 161.
Unions, 162.
Labor code, 157-158.

Lachau, jurisdiction and conflict of laws, 203.
Lachau and Daguin, foreign judgments, 203.
Lacour, maritime commerce, 123.
Lacour and Bouteron, commercial law, 106.
Laferriere, administrative law, 215.
Lain6:

Conflict of laws, 198.
Renvoi, 201.
Lambert, comparative law, 50.
Lamer, checks, 121.
Lamy, transportation, 119.
Land insurance, 128.
Lapradelle, 192.

Constitutional law, 209.
Larcher, colonial law, 230.
Larombiere, obligations, 94.

Laurent:

Civil law, 81.

Private international law, 191.
Law libraries, catalogues of, 12, 13.
Law publishers, 13.
Laws. See Legislation, 14-18.
Lebon, administrative decisions, 23, 213.
Lecercl6 and Allii. See AUix, 233, 234,
Lecomte, liquidation judiciaire, 131.
Lefebvre, legal history, 66.
Lefort, insurance, 129.
Le Fur, legal philosophy, 49.
Legal education, 26-32.

Case method, 31.

Curricula, 28.

Degrees, 28.

Enrollment in law schools, 27.

Faculties, 29.

Law schools, 27.

Method of instruction, 30.

Student guides, 26.

Student texts, 31.

Teachers, Contribution to legal litera-
ture, 29-30.
Legal history, 51-71.

Codification, 68.

Criminal procedure, 67.

Empire, 70.

Feudal period, 56.

Prankish period, 54.

Gallo-Roman period, 51.

German laws and codes, 55.

History of sources, 68.

Jurisconsults, 60.

Leges barbarorum, 64.

Matrimonial law, 66.

Modern legal histories, 63.

Monarchical period, 59.
Royal legislation, 59-60.

Regional customs, 56.
Coutumiers, 57.

Roman law, 52.

Roman texts, 52.

Succession, 67.
Legal philosophy. See Philosophy of law,

32-49.
Legal profession, 151.
Leges Visigothorum, 55.
Legislation, 14-18.

Codes and laws, 17.

Growth of the law through legislation, 14.

Repositories, 16.

War legislation, 17.
Legitimation, 93.
Lemonnier, insurance, 127.
Le Paulle, copyright, 133.
Le Poittevin:

Criminal law, 179.

Criminal procedure, 182.

Press, 230.
Lerminier, legal philosophy, 34.
L6vy, legitimation, 93.
L6vy-Ullmann, legal philosophy, 47.
Lex romana Burgundionum, 55.
Lex romana Visigothorum, 55.
Lex Salica, 54, 55.
Liberty to work, 153.
Libraries, 12.

Licence en droit, student texts, 31.
Life Insurance, 128.
Limitation of liability, 125.
Limited partnerships, 108.
Linage, de, civil procedure, 145.
Liquidation Judiciaire, 130.
Literary and industrial property, 131-137.

Bibliography, 131.

Copyright, 132.

Designs and models, 135.

Foreign patents and copyright, 136.

General literature, 132.

Patents, 134.

240

INDEX

Literary and industrial property— Contd.

Trade-marks, 135.

Unfair competition, 136.
Littr6, legal philosophy, 40.
Livre du centenaire, 7, 83.
Locr6, codification, 70.
Loeb:

Foreign corporations, 113.

Marriage, 88.
Loi Chapelier, 153.
Loi Gombette, 55.
Lois annot6es, 16.
Lois et actes du gouvernement, 15.
Lois nouvelles, 16.
Lois usuelles, 17.
Lombroso, criminal law, 170.
Lorenzen;

Causa and consideration, 96.

Conflict of laws, 193.

Qualifications, 200.

Renvoi, 201.
Lorraine, 231.
Louage du travail, 160.
Loubat, workmen's compensation, 164
Louis XIV, royal legislation, 59.
Louis, Paul, labor unions, 162.
Louis-Lucas, nationality, 195.
Lucas, criminal law, 169.
Lyon- Caen, bankruptcy, 130.
Lyon-Caen and Renault:

Commercial law, 104, 106.

Maritime commerce, 122.
Magistry:

Health and safety, 226.

Reform, 141.
Magnol, criminal law, 176.
Malapert, liquidation judiciaire, 131.
Malberg, Carr6 de, sovereignty, 228.
Malepeyre, magistracy, 141.
Maleville, codification, 70.
Mangini, conflict of laws, 199.
Mangin, partie civile, 186.
Marcad6, Civil code, treatises, 79.
Marcq, State responsibility, 221.
Marital authority, 93.
Marital property, 89-95.
Maritime commerce. See Commercial law,

99-131.
Maritime insurance, 127.
Maritime liens, 124.
Marques de fabrique, 135.
Marriage, 88-91.

History of, 66, 67.
Martin, Olivier, 67.
Masteau, State responsibility, 221.
May, Roman law, 54.
Mayer, commercial code, 102.
Merignhac:

Colonial law, 230.

Community property, 90.
Merlin:

Questions de droit, 25.

Repertoire universel, 25.
Methods of interpretation, 46.
Michel, legal philosophy, 42.
Michoud:

Persons, 86.

Sovereignty, 223.
Military codes, 187.
Military law, 187-188.
Millerand, labor and social legislation, 156.
Minimum wage, 161.
Modern criminal science series, 2.
Modern legal philosophy series, 3.
Mois 16gislatif et rggjementaire, 18.
Moissinac, separate property, 90.
Molinier, criminal law, 176.
Montier and Faucon, fonds de commerce, 117.
Moreau:

Administrative law, 211.

Constitutional law, 209.

Morel, copyright, 133.

Morel, Glasson, and Tissier, civil procedure,

145,
Morin:

Evolution of civil law, 76.

Labor legislation, 164.
Moroccan law, 230.
Moulin, Charles du, legal history, 60.
Moye, public law, 204.
Napoleon III and Labor l^islation, 165.
Nast and Kleine, criminal law, 180.
Nationality, 193-195.

of corporations, 114.
Natural law, 33-37, 46-48.
Naturalisation, 194.
Negotiable paper, 119-121.
N6zard, public law, 204.
Niboyet:

Alsace and Lorraine, 231.

Nationality, 195.

Pillet and Private international law, 191.
Non-responsibihty clause, 126.
Notary, 151.
Nouveau repertoire, 25.
Obligations, 94r-98.

Ordonnance civile, royal legislation, 59.
Ortolan:

Civil procedure, 144.

Criminal law, 175.
Oudot, legal philosophy, 34.
Pandectes fran?aises:

Encyclopedia, 25.

Reports, 21.
Panhard, administrative reports, 21, 213.
Pardessus:

Commercial law, 103.

Maritime commerce, 122.
Paris bar, 152.
Partie Civile, 186.

Partnerships, Associations and Corporations,
107-115.

See also Commercial law, 99-131.
Patents, 134.
Paternal authority, 93.
Payen and Duveau, Paris bar, 152.
Pays de droit contumier, 67.
Pays de droit 6crit, 67.
Pellerin:

Bankruptcy, 131.

Foreign corporations, 113.
Penal code, 168.

Penal code and labor legislation, 153.
Penal law. See Criminal law, 167-180.
Penology, 168-172.
Percerou:

Bankruptcy, 130.

See also Collection Thaller, 106.
Periodicals:

Civil law, 84.

Commercial law, 106.

Criminal law, 177.

Dailies, 22.

Literary and industrial property, 132.

Maritime law, 123.

Partnership, 115.

Private international law, 192.

Public law, 206.
Perriquet, State responsibility, 221.
Personality and reality of law, 198 et seq.
Personality of the State, 221.
Personne morale, 85.
Persons, 85-88, 221-223.
Petit, Roman law, 53.
Petits codes et lois Carpentier, 18.
Petits precis Dalloz, 31.
Philosophy of criminal law, 169-172.
Philosophy of law, 32-49.

Analytical jurisprudence, 37,

Comparative law, 50.

Concept of ideal justice, 86.

Duguit's social solidarity, 44.

INDEX

241

Philosophy of law— Continued.

Evolution of philosophical method, 95.

Historical school, 37.

Individualistic content of natural law, 36.

Methods of interpretation, 46.

Natural law, 33-37, 46, 48.

Positivist-sociological school, 30.

Post-war legal philosophy, 47 et seq.

Eevival of natural law, 46-47.

Social solidarity, 41.

The philosophical method in France, 34.

Twentieth century philosophical thought,
42 et seq.

Utilitarianism, 38.
Pic:

Labor and social legislation, 168.

Partnership and corporations, 111.
Pic and Bartin, private companies, 112.
Picard:

Railroads, 225.

Social insurance, 167.
Pichot, unfair competition, 136.
Pi6rard, divorce, 93.
Pigeau, civil procedure, 144.
Pillet:

Foreign copyright and patents, 137.

Foreign corporations, 114.

Foreign judgments, 203.

Jurisdiction of suits of foreigners, 2(^.

Private international law, 190, 191, 199.
Plaisant:

Copyright, 133.

Foreign copyright and patents, 137.
Planiol, civil law, 83.
Planiol and Ripert, civil law, 82.
Poincar6, public law, 204:.
Police, judicial, 182.
Political laws, 206.
Pont, Marcad6 and, 79.
Portalis, codification, 71.
Positivist-sociologieal school, 39.
Possession, property, 98-99.
Pothier, legal history, 61.
Potu, renvoi, 201.
Pouillet:

Copyright, 133.

Designs and models, 135.

Patents, 134.

Trade-marks, 135.

Unfair competition, 136.
Press, 229^.

Pr6voyance sociale, 157.
Private companies, 112.
Private international law, 18&-203.

Acquired rights, 202.

Conflict of laws, 198.

Foreign judgments, 203.

Foreigners, privileges, etc., 195-198.

Nationality, 193-196.

Naturalization, 194.

Periodicals, 192.

Renvoi, 201.

Suits by and against foreigners, 202.

Theories of conflict of laws, 198 et seq.

Theory of qualifications, 200.

Treatises, 190.
Procedure. See Civil procedure, 137-153:

Criminal procedure, 180-189.
Proof, 148.

Proudhon, labor legislation, 155.
Protection of workers, 162.
Prud'hommes. See Conseils de prud'hom-

mes, 139, 154.
Public education, 226.
Public finance, 231-234.

Budget, 232.

Corporations, 234.

Direct taxes, 233.

Indirect taxes, 234.

Registration, 234.

Sales tax, 234.

Public Law, 204-206.

Code of political laws, 206.

Elementary texts, 204.

Evolution of, 205.

Periodicals, 2G6.
Public works, 223-225.
Punishment, 170, 171, 178, 179.
Qualifications, theory of, 200.
Railroads, public administration, 118, 225.
Rauter, civil procedure, 144.
Raviart, civil procedure, 146.
Raynaud:

Code du travail, 168.

Labor and social legislation, 159, 161.
Recueil d'Isambert, legal history, 60,
Recueil de T Academic de legislation de

Toulouse, 84.
Recueil Sirey. See Sirey.
Regional customs, 56.
R6my, criminal law, 168.
Renard:

Legal philosophy, 48.

Public law, 204-206.
Renault. See Lyon-Caen.
Renouard:

Bankruptcy, 130.

Copyright, 133.
Renouvier, legal philosophy, 34.
Renvoi, 201.
Repertoire general, 23.
Repertoire methodique, 24.
Repertoire pratique, 23, 24.
Repertoires. See Encyclopedias, 23.
Responsibility of State for torts, 216-221.

Administrative responsibility, 219.

Coexistence of civil and administrative
responsibility, 218.

Contracts, 221.

General litwature, 220.

Personal and ofQcial fault, 217.
Revue critique, 84.

Revue de droit international priv6, 192.
Revue de droit maritime, IIS.
Revue de legislation et de jurisprudence, 84.
Revue Foelix, 84.
Revue gen6rale, 84.
Revue historique, 65, 84.
Revue Internationale du droit maritime, 123.
Revue p6nitentiaire, 177.
Revue pratique, 84.
Revue trimestrielle, 84.
Revue Wolowski, 84.
Richard, legal philosophy, 40.
Ripert:

Maritime commerce, 122.

Obligations, 95.

See also Planiol.
Riviere, Codes and laws, 17.
Robert, French bar, 153.
Rodiere, civil procedure, 144.
Roger, transportation, 119.
Roger and Sorel, Codes and laws, 17.
Rolland, administrative law, 211.
Roman law, 52.
Rossi, criminal law, 169.
Rothe, legal philosophy, 35.
Roubier, literary and industrial property, 132.
Rousseau, partnership and corporations. 111.
Rousseau and Galli6, exchanges, 116.
Rousseau and Laisney, civil procedure, 147.
Roux, criminal law, 170, 176.
Royal legislation, 59.
Sachet, workmen's compensation, 164.
Safety regulations, 161.
Sagnac, 15.

Saillard, French bar, 152.
Saleilles:

Attempts, 177.

Comparative law, 50.

Criminal law, 171.

Evolution of civil law, 75.

242

INDEX

Saleilles— C ontinued .

Legal philosophy, 37.]

Obligations, 95.

Persons, 86.

"Works on German civil law, 99.
Sales tax, 234.

Sarrut, transportation, 119.
Sauvage, maritime commerce, 120.
Savigny, historical school, 37.
Scelle, social and labor legislation, 159.
Schreiber, renvoi, 201.
Semaine juridique, 84.
Separate property, 90.
Ship mortgages, 124.
Simonet, administrative law, 211.
Singer:

Copyright, 133.

Patents, 134.
Sirey:

Civil code, 74.

Code of civil procedure, 143.

Commercial code, 101.

Com*t reports, 20.

Encyclopedias, 23.

Penal code, 174.

Student texts, 31.
Sirey et Malepeyre, criminal procedure, 182.
Social insurance, 165-167.
Social legislation, 153 et seq.
Social solidarity, 41.
Soci6t6 anonyme, 109.
Soci6t6 de legislation compar6e:

Annuaire de legislation francaise, 16.

Evolution of civil law, 76.
Soci6t6 en commandite, 108.
Society en horn coUectif, 108.
Soci6t6s a responsabilit6 limitSe, 112.

See also in general Partnerships, Associa-
tions and Corporations, 107-115.
Solidarist doctrine, 41 et seq.
Solus, social insurance, 167.
Sovereignty, 221.
State responsibility, 216.
Stock transfers, 116.
Stourm, budget, 233.
Successions, 99.

History of, 67.
Sumien, insurance, 128.
Sumien and Groussier, code du travail, 158.
Surville and Arthuys, private international

law, 191.
Taillefer, patents, 134.
Tanon, legal philosophy, 41.
Tarde, criminal law, 172.
Tardif, history of sources, 68.
Taudi6re, paternal authority, 93.
Taxation. See Public finance, 231-234.
Teissier, State responsibility, 220.
Texts of French Constitutions, 207.
Thaller, commercial law, 105.
Themis, 84.
Theories of conflict of laws, 199.

Third Republic and labor legislation, 155-157.

Thomines-Desmazures, civil procedure, 145.

Tissier, civil procedure, 143.

Tissier and Glasson, civil procedure, 145.

Torts, 96-98.

Toulemon, criminal law, 172.

TouUier, civil law, 78.

Tourret, minimum wage, 161.

Trade-marks, 135.

Translation of Civil code, 75.

of Commercial code, 101.
Transportation, 118-119.

Public administration, 225.
Travers:

Criminal procedure, 185.

Extradition, 189.
Treaties, 18.
Treatises. See Administrative law, 210-216;

Civil code, etc.
TrSbutien, criminal law, 176.
Tribunal of conflicts, 214.
Tribunal of the first instance, 139.
Troplong, Civil code, 79.
Trusts, 99.

Unfair competition, 136.
Unfair dealing, 97.
Unions, 162.
Utilitarianism, 38.
Valery:

Nationality, 195.

Private international law, 192.
Valroger, maritime commerce, 122.
Van den Heuvel, persons, 85.
Vareilles-Sommi6res :

Legal philosophy, 35.

Persons, 86.

Territoriality of law, 199.
Vavasseur, partnerships and corporations,

110.
Vermond, maritime commerce, 123.
Victims of erroneous convictions, 187.
Vidal, criminal law, 171, 176.
Viollet, legal history, 64.
Vivante, insurance, 127.
Wahl:

Commercial law, 106.

Maritime commerce, 123.
Waldmann, exchanges, 116.
War legislation, 17.
Weil, insurance, 127.

Weiss, private international law, 190, 191.
White, patents, 134.
Wilhelm, mihtary law, 188.
WiUiamson, negotiable paper, 121.
Wodon, State responsibility, 221.
Workmen's compensation, 162-165.

General literature, 164.

Prior to 1898, 162.

Repositories of, 164.
Wright, Civil code, 75.
York-Antwerp rules, 128.
Zacharia, Civil code, 79,

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